MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 March 2002
         DOCKET NUMBER: AR2001064593

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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: That his original retirement orders be reinstated and that his rank of Sergeant, E5 be restored.

APPLICANT STATES: That he was court-martialed after his retirement was approved. A crime was never committed. Evidence was withheld. He was placed on excess leave in January 1996 and from that time to the present he has been told by appellate attorneys that he is on an appeal status.

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

He initially enlisted in the Regular Army on 28 July 1975. He was released from active duty on 31 March 1976 apparently under the Expeditious Discharge Program. He reenlisted in the Regular Army on 11 September 1980. He was promoted to Sergeant, E-5 on 8 November 1985 in military occupational specialty 73C (Finance Specialist).

The applicant applied for early retirement under the fiscal year 1995 (FY 95) Enlisted Early Retirement Program. His request was approved and orders were issued on 9 September 1994 retiring him effective 31 January 1995 after completing 15 years and 23 days of creditable active service.

On 2 November 1994, the U. S. Army Criminal Investigation Command (USACIDC) initiated an investigation into financial misconduct at the Defense Finance and Accounting Office, Fort Story, VA. The applicant was one of the subjects of the investigation. On 5 January 1995, the USACIDC’s investigation established probable cause to believe the applicant conspired with another individual to defraud the Government.

On 13 March 1995, charges were preferred against the applicant charging him with numerous specifications of attempted larceny and conspiracy to defraud the Government.

On 10 August 1995, the applicant was convicted by a general court-martial of one specification of attempted larceny of $831.00 between 12 and 27 July 1994;
three specifications of conspiracy (false claim and larceny) between 25 January and 20 February 1994, 28 January and 17 February 1994, and 22 February and 10 March 1994, respectively; three specifications of larceny of $900.00 between 25 January and 20 February 1994, of $880.00 between 28 January and 17 February 1994; and larceny of $712.15 between 22 February and 10 March 1994; one specification of false swearing on or about 22 July 1994; four specifications of solicitation (false claim and larceny) between 25 January and 20 February 1994, 28 January and 17 February 1994, 22 February and 10 March 1994, and 12 and 27 July 1994, respectively; an additional specification of conspiracy (false claim and larceny) between 25 and 27 January 1994; an additional specification of larceny of $600.00 between 25 and 27 January 1994; and an additional specification of solicitation (false claim and larceny) between 25 and 27 January 1994. He was sentenced to be reduced to Private, E-1, to forfeit $569.00 pay per month for 19 months, and to a bad conduct discharge. The sentence, except for that part extending to a bad conduct discharge, would be executed.

The applicant appealed, asserting that the Staff Judge Advocate exercised unlawful command influence and violated military due process by threatening witnesses with court-martial if they invoked their rights to remain silent.

On 7 April 1997, the U. S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. The applicant appealed and on 19 February 1998 the U. S. Court of Appeals for the Armed Forces granted his petition for review.

On 29 September 1999, the U. S. Court of Appeals for the Armed Forces affirmed the decision of the U. S. Army Court of Criminal Appeals.
General Court-Martial Order 11, U.S. Army Transportation Center dated 14 June 2001 announced the affirmation of the applicant’s sentence.

On 8 February 2002, the Transition Point, Fort Eustis, VA stated that they never issued the applicant a Certificate of Discharge or Release from Active Duty, DD Form 214, as they never received the final appellate action. The Fort Eustis, VA Staff Judge Advocate office stated on 8 February 2002 that they will coordinate with the Transition Point to give them whatever documents are needed to issue his DD Form 214.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 states that a soldier of the Regular Army who has completed 20 but less than 30 years of active Federal service (or, during the drawdown period, 15 but less than 20 years of active Federal service) may, at the discretion of the Secretary of the Army, be retired at his or her request.

U. S. Total Army Personnel Command message 121432Z May 1994 implemented the FY 95 Enlisted Early Retirement Program. It stated that individuals pending involuntary separation under provisions of Army Regulation 635-200, pending trial by courts-martial, or under investigation for Uniform Code of Military Justice (UCMJ) offenses which the immediate commander believed would result in trial by court-martial or involuntary separation under the provisions of Army Regulation 635-200 were ineligible to apply for early retirement. Separation authorities would cancel approved, but not yet executed, retirements under the provisions of this program if a soldier was subsequently identified for UCMJ action or involuntary separation.


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. 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.

2. The Board notes that the applicant’s request for early retirement had been approved by 9 September 1994. He would have had just over the minimum active service required for early retirement as of his approved retirement date of 31 January 1995. However, the Board also notes that he was charged with criminal conduct that extended back to January 1994, well before the FY 95 Enlisted Early Retirement Program was implemented. Had authorities been aware of his conduct at that time, he would not have been eligible to apply for early retirement. As it was, separation authorities properly canceled his approved but not yet executed retirement when he was identified for UCMJ action.

4. The applicant’s contentions regarding his trial relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process and furnish no basis for granting the relief requested.

5. 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

__jns___ __lds___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064593
SUFFIX
RECON
DATE BOARDED	20020321
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	136.05
2.
3.
4.
5.
6.