APPLICANT REQUESTS: Reconsideration of his application in order that he receive separation pay; that he receive Army Career and Alumni Program (ACAP) services; that unfinished dental work, which was initiated while he was on active duty, be completed; and that he be made eligible for reentry to active or Reserve service.
APPLICANT STATES: In effect, that because of the manner in which his separation was handled, he was denied due process and did not receive all benefits and services to which he was entitled.
COUNSEL CONTENDS: NA
EVIDENCE OF RECORD: The applicant's military records show:
He was born on 23 February 1949 and enlisted in the Regular Army for 3 years on 29 September 1977. He remained on continuous active duty through successive reenlistments, attaining the highest grade of sergeant first class on 27 December 1985. His job specialty was field artillery surveyor.
On 13 October 1992, the applicant appeared with counsel in the District Court of Comanche County, Oklahoma, and pleaded guilty to the offense of assault and battery upon a police officer. Convicted, he was sentenced to confinement for 1 year, plus costs, fees, and assessments. On the date of his conviction, the Army administratively reduced the applicant from sergeant first class to private under the provisions of Army Regulation 600-8-19, for misconduct.
On 6 November 1992, the applicants commander initiated action to discharge him under the provisions of chapter 14, Army Regulation 635-200, misconduct (civil conviction). The applicant acknowledged notification and, after consulting with legal counsel, requested a formal hearing before a board of officers. The hearing was conducted on 13 January 1993 and the applicant was present and represented by legal counsel. After considering all matters, the board of officers recommended that the applicant be separated with an honorable discharge (HD). The recommendation was approved and the applicant was finally separated on 17 March 1993 with an HD. He had 15 years and 13 days of creditable service and 156 days of lost time due to civil confinement. His Certificate of Release or Discharge from Active Duty, DD Form 214, indicates that he did not receive dental services within 90 days of separation.
Army Regulation 600-8-19 provides policies and procedures for enlisted promotions and reductions. Paragraph 6-3 provides that soldiers convicted by a civil court and sentenced to an unsuspended sentence to confinement of 1 year or more will be reduced to the lowest enlisted grade.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.
Department of the Army Circular 635-92-1, then in effect, established the policy and implementing instructions for receiving separation pay. Paragraph 2-4h states that soldiers who are separated for unsatisfactory performance or misconduct [emphasis added] are not eligible for separation pay.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. Because of the separation authority used and the narrative reason for his separation, the applicant is not entitled to receive separation pay.
2. Because the applicant was in civil confinement until shortly before his separation, dental services and ACAP/transition services were not provided. His DD Form 214 indicates that dental services were not provided within 90 days of separation.
3. With an HD, the applicant is authorized to apply to the Department of Veterans Affairs (VA) for outpatient dental treatment for conditions which are service-connected. Since he contends that treatment which was initiated while he was on active duty was never completed, he may take his dental records to the nearest VA facility to complete that treatment.
4. The applicant has a reentry eligibility (RE) code of RE-3, ineligible for reentry without a waiver. This means that he is eligible for reentry into the military provided he receives a waiver for his civil conviction and any other non-qualifying condition (i.e., his rank of private). The RE-3 code is proper for the applicants separation authority.
5. Reference the applicants eligibility for ACAP/transition services, a staff member of this Board contacted the proponent for ACAP/transition services at the Total Army Personnel Command (PERSCOM). The proponent stated that the applicant was eligible for, and could receive, such services. The proponent contacted the ACAP provider at Fort Sill to advise that the applicant should be afforded such services should he apply.
6. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
NOTE: The applicant is advised to contact Transition Services, located in Building 2913 at Fort Sill, to apply for his ACAP/transition services. The Chief of Transition Services has been made aware of the applicants eligibility.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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