MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 March 2002
         DOCKET NUMBER: AR2001062665

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Walter T. Morrison		Member
Mr. Roger W. Able		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that the he receive a hearing by a military
court-martial; that he be granted retirement points; that he be considered for promotion; that he be reimbursed for the shipment of his household goods (HHG); and that he be provided basic pay and allowances.

APPLICANT STATES: In effect, that he was never afforded the opportunity to be heard by the military in a court-martial hearing for the sanctions that were imposed upon him. He claims that the jurisdiction of the offense should have been decided at a court-martial hearing in order to determine all the repercussions on him, especially given he was unlawfully arrested and denied his rights as a commissioned officer on active duty. He also indicates that he was on active duty from 15 July 1990 until 11 September 1995, however, all his military pay and allowances ceased on 26 January 1995, the date he was confined by civil authorities. This also resulted in his only being credited with 2 years of good service for this entire period. He further indicates that it would be inexcusable for the military to deny him promotion consideration given he had been slated and congratulated on his promotion to captain, but denied that promotion because of the accusations of State authorities. He further claims that because he was incarcerated by the State and unable to return to his home of record, a percentage of his personal belongings were mailed to his home at an expense to his parents and to date, he still has property stored in Pennsylvania and New Jersey. He also indicates that no charges were filed by the military until on or about 27 March 2001, and no military hearing or investigation has taken place on this matter. Active duty assignment orders were developed involuntarily and all basic pay and allowances were ceased on 26 January 1995, without proper military justification. He points out that this was the date he was incarcerated by civil authorities and not by the military. He claims that the military abandoned him until 11 September 1995, at which time orders were produced, but not provided to him until 5 years later. On or about 27 March 2001, he was accused by the military for personal misconduct and conduct unbecoming an officer. He concludes by stating that the State untimely and without justification sought his prosecution and to allow this ill timed decision to stand without repercussions for its lack of compliance with statutory and established protocol, would fly in the face of comity. He finally comments that not upholding the rule of comity creates a dangerous precedent by allowing any State to dwell in a military matter, which clearly violates the intent of Article 1, Section 8, Clause 14 of the United States Constitution.

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EVIDENCE OF RECORD: The applicant's military records show:

On 10 October 1986, he was commissioned an Armor second lieutenant (2LT) in the United States Army Reserve (USAR). He served in an active USAR status in a Troop Program Unit until 14 July 1990, at which time he transferred to the USAR Control Group for the purpose of entering active duty on an Active Guard Reserve (AGR) tour.

On 15 July 1990, he entered active duty on an AGR tour and he was assigned to Headquarters and Headquarters Company, 6^th Battalion, 68^th Armor Regiment, Bethlehem, Pennsylvania, to perform duties as the company executive officer.

On 26 January 1995, the applicant was convicted in a civil court of involuntary deviate sexual intercourse (with a minor male child), endangering the welfare of a child, selling liquor to a minor, and indecent assault. He was sentenced to imprisonment for not less than 5 years nor more than 15 years. On this same date, the applicant’s unit submitted a duty status change (DA Form 4187), which changed his status from present for duty to imprisoned.

On 22 June 1995, a Department of the Army Active Duty Board (DAADB) was convened to determine whether the applicant demonstrated significant misconduct, moral or professional dereliction. This board found that the offenses that resulted in the applicant’s civil conviction and the resultant sentence met the criteria for immediate release from active duty (REFRAD). The board recommended that the applicant be REFRAD with an under other than honorable conditions characterization of service. They further recommended that the applicant’s case be referred to the Army Reserve Personnel Command (ARPERSCOM) for elimination consideration.

On 26 June 1995, the Deputy Assistant Secretary (Army Review Boards) approved the DAADB recommendation that the applicant be REFRAD with an under other than honorable conditions characterization of service and that his records be referred to ARPERSCOM, for review and consideration of his elimination from the USAR.

On 11 September 1995, the applicant was released from active duty under other than honorable conditions and transferred to the USAR Control Group (Reinforcement), ARPERSCOM, St. Louis, Missouri. At the time of his separation, he had completed a total of 4 years, 6 months, and 8 days of creditable active military service, and he had accrued 229 days of time lost due to confinement.

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On 8 March 2001, the applicant’s Member of Congress was advised by the Department of the Army (DA) Associate Director of Force Projection and Distribution, that the applicant should request an amendment to his separation order (C-08-700974), dated 31 August 1995, which authorized travel and transportation entitlements for the applicant’s dependents and HHG; to add a fund cite. Further, once an amendment had been issued, the applicant should provide the following documents to an individual in his office and the applicant’s request for reimbursement would be reviewed, the appropriate reimbursement would be authorized, and the address of the paying finance officer would be provided.

On 20 March 2001, the applicant submitted a request for an amendment to his separation orders to ARPERSCOM. The applicant claims to date he has not received a reply to this request and there is no evidence of record to confirm if this request was ever received, considered, or denied by ARPERSCOM.

On 27 March 2001, ARPERSCOM officials notified the applicant that he was being considered for involuntary separation under the provisions of Army Regulation 135-175, paragraph 2-12f (acts of personal misconduct) and 2-12o (conduct unbecoming an officer) based on the offenses for which he was convicted by the Commonwealth of Pennsylvania and that resulted in his imprisonment of 5 to 15 years and the applicant was given the option of resigning in lieu of elimination, or to have his case heard by a board of officers.

On 6 April 2001, the applicant completed his option form and elected to have his case heard by a board of officers. As of the date the Board considered this case, the applicant’s elimination action was still pending a review and consideration by an administrative separation board of officers and had not yet been completed.

Army Regulation 600-8-2 provides the policy and procedure for the suspension of favorable personnel actions and it provides for the Army to operate a system that prevents the execution of a favorable action on a soldier not in good standing. It states, in pertinent part, a suspension of favorable personal actions will be initiated on any soldier when an unfavorable action or investigation (formal or informal) is started on a soldier by military or civilian authorities. It also specifies that promotion or reevaluation for promotion are included in those favorable actions prohibited under this process.

Army Regulation 600-8-24, provides the policy and procedure for officers transfers from active duty to the Reserve Components and discharge functions for officers on active duty for 30 days or more. Section XV provides the policy for the involuntary REFRAD of officers by the DAADB. It states, in pertinent part, that officers may be involuntarily separated when there is evidence of a significant act or condition of misconduct or moral or professional dereliction.

Section XVI provides the policy for the involuntary REFRAD of an officer due to a civil conviction. It states, in pertinent part, that an officer convicted of a criminal offense in a State or Federal court, which results in a confinement sentence of more than 1 year or involves moral turpitude may be immediately REFRAD.

Army Regulation 135-175 provides the policies, criteria, and procedures governing the separation of Reserve officers of the Army. Chapter 2 provides
the policy and procedure for the involuntary separation of Reserve officers. Paragraph 2-12 contains guidance on separating Reserve officers for moral or professional dereliction, which includes acts of personal misconduct and conduct unbecoming an officer.

Department of Defense Financial Management Regulation, Volume 7A provides the policy on military pay and allowances. Chapter 3 contains guidance on the effect of absences from duty on pay. Paragraph 030204 contains guidance on pay and allowances for members in the hands of civil authorities. It states, in pertinent part, that members receive pay only through the day prior to the unauthorized absence (imprisonment) and that all pay and allowances are forfeited based on the confinement by civil authorities.

Army Regulation 15-185 provides the policy and procedure for the operation of the Army Board for Correction of Military Records. Paragraph 8, provides, in effect, that the Board will not consider or grant relief on an issue until it determines and is satisfied that an applicant exhausted all available administrative remedies.

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. The Board notes the applicant’s contentions that his REFRAD was improper and that he should have received a hearing by a court-martial; that he should have continued to receive retirement points, promotion consideration, and basic pay and allowances; and that he should be reimbursed for shipment of household goods. However, the Board finds insufficient evidence to support these claims.

2. By law and regulation, a suspension of favorable personal actions, which precludes their promotion, is initiated on any soldier when an unfavorable action or investigation is started by military or civilian authorities. Further, members confined by civil authorities are placed in an unauthorized absence duty status and automatically forfeit all basic pay and allowances.

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3. In addition, the Secretary of the Army is authorized to involuntarily separate officers from active duty through the DAADB process based on evidence of significant act or condition of misconduct or moral or professional dereliction; and those who are convicted of a criminal offense in a State or Federal court, which results in a confinement sentence of more than 1 year or involves moral turpitude.

4. The evidence of record confirms that the applicant was convicted of criminal offenses in a civil court that included acts of moral turpitude and that he was sentenced to imprisonment for not less than 5 years nor more than 15 years. In the opinion of the Board, his separation processing was conducted in accordance with applicable law and regulation and it is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5. Based on the facts of this case, the applicant’ right to receive favorable personnel actions were appropriately suspended once civil authorities preferred charges against him and as a result his promotion to the next higher grade was prohibited. Further, once he was confined by civil authorities he was placed in an unauthorized absence duty status and automatically forfeited his entitlement to receive basic pay and allowances and to accrue creditable service, to include retirement points. Therefore, the Board finds that relief in regard to these issues is not warranted in this case.

6. The Board notes that the applicant was notified by ARPERSCOM officials that he was being considered for elimination from the USAR and that he elected to have his case heard by a board of officers; and that to date this process has not been completed. Although it appears that this elimination action is being processed in accordance with applicable law and regulation, the Board is unable to render a final judgment in regard to any issues related to this process until it has been completed.

7. In addition, the Board notes that the applicant was offered an administrative remedy to his HHG shipment issue by DA officials. Although it appears he has not yet received an amendment to his separation orders as he requested from ARPERSCOM, there is also no evidence that this request was denied. As a result, this still appears to be a viable administrative remedy to this issue.

8. The applicant is advised to pursue the administrative remedy offered on his HHG shipment issue by contacting ARPERSCOM officials, either directly or through the point of contact provided for his elimination processing. If he is provided this amendment to his separation orders, he should provide the packet of documents requested to DA officials for a final determination on this issue.

9. Once the applicant exhausts all administrative remedies available to him in regard to reimbursement for his HHG shipment, if he is not satisfied with the result, and if he still believes there is an error or injustice, he may reapply to this Board with the appropriate supporting evidence and proof of denial by either ARPERSCOM or DA.

10. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

11. 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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JHL__ __WTM__ __RWA___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001062665
SUFFIX
RECON
DATE BOARDED	2002/03/14
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1995/09/11
DISCHARGE AUTHORITY	AR 600-8-24
DISCHARGE REASON	Misconduct moral or professional dereliction
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 30	105.1000
2.
3.
4.
5.
6.