MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        

         BOARD DATE: 16 October 2003
         DOCKET NUMBER: AR2003085486

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry		Member
Ms. Mae M. Bullock		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 he be granted military retirement based on completion of 19 years, 8 months, 10 days of active military service.

APPLICANT STATES: In effect, that the Army Discharge Review Board (ADRB) determined that his discharge was inequitable and granted him relief in the form of an upgrade of his characterization of service to fully honorable and a change to the narrative reason for his discharge to Secretarial Authority. The ADRB action also resulted in a reinstatement of his rank and pay grade to sergeant first class/E-7 (SFC/E-7), and a change to his reentry (RE) code to RE-1. The applicant also states that he ADRB calculated his total active military service to be 19 years, 8 months, and 10 days.

The applicant also states that at the time of his discharge, he had accrued
45 days of accrued leave that went unused and for which he was never paid. He now asks if this leave could be credited as active duty service. The applicant further claims that he felt pressured to request a discharge because his request to change the location of his court-martial was denied and he felt he could not receive a fair trial at Fort Sill, Oklahoma. In addition, he was experiencing medical problems that rendered him physically unfit to participate in court-martial proceedings, and because of the stress his wife was experiencing because she was an active duty Army officer and her belief that his trial would negatively impact her military career. In support of his application, he submits a copy of the ADRB decisional document (OSA Form 172).

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

The applicant served on active duty in the Regular Army from 18 September 1973 through 17 September 1976 at which time he was honorably released from active duty (REFRAD). On 15 September 1977, he enlisted in the Delayed Entry Program (DEP) of the United States Army Reserve (USAR). He was discharged from the DEP on 1 November 1977 and entered active duty in the Regular Army for four years on 2 November 1977. He continuously served on active duty until being discharged under other than honorable conditions (UOTHC) on 27 May 1993.

The record shows that the applicant was trained and served in military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic), and the highest rank he attained was SFC/E-7. The record further shows that during his tenure on active duty he earned the following awards: Army Achievement Medal (1^st Oak Leaf Cluster); Good Conduct Medal (6^th Award), and National Defense Service Medal.

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In 1993 court-martial charges, that included three specifications of larceny, were preferred against the applicant while he was serving at Fort Sill, Oklahoma.

On 6 May 1993, the applicant consulted with legal counsel, and after being advised of the basis for the contemplated trial by court-martial, its effects, and the possible effects of receiving an UOTHC discharge, he voluntarily requested an administrative discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial. In his discharge request, the applicant acknowledged that he understood the elements of the offenses charged, and he admitted that he was guilty of the charge, or a lesser included offense that authorized the imposition of a punitive discharge.

The applicant submitted a statement in his own behalf outlining the factors that should be considered in determining his characterization of service as fully honorable. He described his view of the facts and circumstances that led to his request for discharge in lieu of trial by court-martial, and why he feared risking a criminal conviction regardless of his innocence.

On 20 May 1993, the separation authority approved the applicant’s request for discharge and directed that he be given an UOTHC discharge and that he be reduced to the lowest enlisted grade. On 27 May 1993, the applicant was discharged accordingly and reduced from E-7 to E-1.

The separation document (DD Form 214) issued to the applicant on the date of his discharge shows that he was separated with an UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial. At the time of his discharge, he had completed a total of 18 years, 6 months, and 26 days of active military service and 1 year,
1 month, and 15 days of prior inactive service.

On 5 November 2002, the ADRB determined the applicant’s discharge was inequitable and it voted to upgrade the characterization of service to honorable and to change the authority and narrative reason for discharge to paragraph 5-3, Army Regulation 635-200, Secretarial Authority. The ADRB also directed that the applicant’s rank and pay grade of E-7 be reinstated and that his RE-3 code be changed to RE-1.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides, in pertinent part, that a member who has committed offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service, in lieu of trial by court-martial. This request may be submitted at any time after charges are preferred and must include an admission of guilt by the individual. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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Title 10 of the United States Code, sections 3911 and 3914 provide the legal authority for the retirement of Regular Army soldiers with at least 20, but less than 30, years of active military service. It states, in pertinent part, that RA soldiers may, upon their request, be retired, at the discretion of the Secretary of the Army. During the period 1992 through 2001, the law authorized the Secretary of the Army to apply the retirement provisions of this law to members who had completed at least 15 but less than 20 years of service. Approval of early retirement under TERA provisions remained at the discretion of the Secretary of the Army.

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 contention that he should be granted retirement based on the ADRB determination that his discharge was inequitable; and he further requests that 45 days of accrued leave he had at the time of discharge be added to the ADRB computation of 19 years, 8 months, and
10 days, and his retirement be based on 19 years, 9 months, and 25 days of service. However, the Board finds an insufficient evidentiary basis to support this requested relief.

2. Notwithstanding the ADRB determination that the applicant’s discharge was inequitable, the Board does not find that the applicant’s discharge was improper. The record shows that the applicant’s discharge processing was accomplished in accordance with the applicable regulation and there is no evidence to suggest he was denied any rights associated with the separation action.

3. The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The Board notes that, after consulting with defense counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial. In doing so, he admitted guilt to the stipulated offense under the UCMJ. This Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4. By law and regulation, voluntary retirement with less than 30 years is granted at the discretion of the Secretary of the Army upon the request of the individual concerned. The ADRB action to upgrade the applicant’s discharge on equity grounds does not carry with it an automatic entitlement to retirement. The Board finds no reason to believe that the applicant intended to request early retirement under TERA provisions prior to committing the offense(s) for which he was properly discharged or that the needs of the Army would have dictated approval of the applicant’s early retirement at that time. Thus, the Board finds an insufficient evidentiary basis to grant the requested relief.
5. In the opinion of the Board, in order to support granting the applicant a retroactive retirement, there would have to be evidence to show that his original discharge was improper and/or that he was denied rights to which he is entitled under the governing law and regulation. Neither the ADRB decisional document nor the evidence presented before this Board has established that the applicant’s discharge was improper.

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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_MB___ ___HOF__ ___AO__ _ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085486
SUFFIX
RECON
DATE BOARDED	2003/10/16
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1993/05/27
DISCHARGE AUTHORITY	AR .635-200
DISCHARGE REASON	Secretarial authority
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.