RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 FEBRUARY 2005
      DOCKET NUMBER:  AR2004106173


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Jennifer Prater               |     |Chairperson          |
|     |Mr. Thomas Pagan                  |     |Member               |
|     |Mr. Kenneth Lapin                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that items on his DD Form 214 (Certificate of
Release or Discharge from Active Duty) be corrected as follows:

      a.  Item 2 – Change to read “ARMY/USAR” vice ARMY/RA.

      b.  Item 6 – Change to read “20030618” vice 00000000 (Reserve Oblig.
Term. Date).

      c.  Item 9 – Change to read “114 MC HSP CBT SPT HSP (WSAOTO)” instead
of NA (Command to Which Transferred).

      d.  Item 12b – Change to read “20030618” vice 20010405 (Separation
Date this Period).

      e.  Item 23 – Change to read “Separated” instead of Discharge (Type
of Separation).

      f.  Item 24 – Change to read “Honorable.”

      g.  Items 25, 26, and 27 – Change to show the proper authority.

      h.  Item 28 – Change to read “Fulfillment of AD obligation” instead
of Misconduct (Narrative Reason for Separation).

He also requests that his record be corrected to show that he was released
from active duty and returned to his Reserve unit subsequent to his court-
martial conviction in September 2000.

2.  The applicant states that he was dropped from the rolls of the Army
Reserve on 8 April 2000.  When returned to military control, documents show
correct component (USAR).  Orders assigning him to the Personnel Control
Facility (PCF) show correct component.  Army Regulation 310-25 defines
active Army components.  He states that RMC [return to military control]
should have been sent to his unit of assignment – Company B, Madigan Army
Medical Center, at Fort Lewis, Washington.  His assignment to Fort Sill PCF
was for the purpose of coercing a chapter 10 request [Request for
separation for the good of the government in lieu of trial by court-
martial] and/or coercing him to waive appearance before an involuntary
separation board.  All Fort Sill organizations demonstrated failure to
follow regulations.  He states that he should have been released upon
execution of his court-martial sentence in December 2000 and assigned to
his Reserve troop program unit to complete his contractual military service
obligation.  Had he been released properly, he would have completed his
obligation and be entitled to retired pay at age 60.

3.  The applicant provides a copy of his enlistment document; DD Form 214;
assignment orders; request for duty status change; definitions from Title
10, United States Code; pages extracted from Army Regulation (AR) 310-25,
AR 135-91, DA Pamphlet 600-8, and AR 630-10.

      a.  In a three-ring binder the applicant provides numerous documents
contained in fifteen sections, each section prefaced by his explanation
concerning the documents contained therein.  These include documents he
submitted in his complaint to the Inspector General, assignment orders,
enlistment document, response to his requests under the Freedom of
Information Act and Privacy Act, request for a commander’s inquiry, request
for redress, reports of mental status evaluations, report of sanity board
proceedings, court-martial orders and portions which he extracted from the
court-martial proceedings, reduction order, document showing that he
completed the Advanced Noncommissioned Officer Course (ANCOC), orders
extending his period of active duty for training (ADT), charge sheet,
Defense requests for delay in his court-martial, motions made by his
defense attorney, testimonies, separation proceedings, counseling forms,
requests for transfers, various requests made by the applicant, e.g., to
conduct business during lunch, access to medical records, etc., request for
relief under the Whistleblower Protection Act, requests to a criminal law
captain regarding cruelty and maltreatment [while at the PCF], requests for
a military police investigation concerning disobedience of a lawful order
or regulation by his commanding officer, statements concerning his conduct
while assigned to the PCF, requests from the operations sergeant at the PCF
for documents concerning other Soldiers, and the PCF standard operating
procedures and related documents.

      b.  With his request are a brief containing his arguments with
supporting regulations, and another three-ring binder, his supporting
exhibits.  These two, although included with this case, were in actuality
submitted to the Army Discharge Review Board (ADRB) when he applied to that
board in August 2002 requesting that his discharge be upgraded to
honorable.  The documents contained therein mirror many of the documents
submitted in his request to the Army Board for Correction of Military
Records, and those that do not, to include his arguments are not germane to
his request to this Board, and will not be further addressed.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Texas Army National Guard for six years
on      16 January 1984.  On 19 October 1994 he transferred to the North
Dakota Army National Guard.  He was promoted to sergeant first class on 14
February 1996.  The applicant was discharged from the Army National Guard
on 18 June 1997 in order to enlist in the Army Reserve.  He enlisted in the
Army Reserve for six years on 19 January 1997.

2.  On 25 September 1998 the 88th Regional Support Command (RSC) ordered
the applicant to active duty for training (ADT) for 356 days to attend the
MOS (military occupational school) 91B/91C, Phase 1 and 2, with a reporting
date to Fort Sam Houston, Texas on 9 October 1998.  The applicant was then
assigned to the 114 CSH (HUB) at Fort Snelling, Minnesota.

3.  The applicant completed the medical specialist course (91B) at Fort Sam
Houston on 7 January 1999.

4.  On 2 August 1999 the applicant’s ADT orders were amended to show that
the 91B course was a prerequisite for the 91C course, and that he would
have additional duty at Fort Lewis, Washington.

5.  Orders were published on 23 September 1999 ordering the applicant to
Fort Lewis for 127 duty days with a reporting date of 1 October 1999.  The
orders were amended on 6 January 2000 to show 162 duty days, and again
amended on 7 March 2000 to show 212 duty days.

6.  Army Discharge Review Board proceedings, dated 24 March 2004, show that
the applicant failed to complete his training at Fort Lewis and was
expelled from the 91C course.  Documents submitted by the Army Medical
Department (MEDDAC) commander of Company B, Madigan Army Medical Center
(MAMC) at Tacoma, Washington, show that the applicant went AWOL (absent
without leave) on 10 March 2000 and was dropped from the rolls on 9 April
2000.

7.  The applicant returned to military control at Grand Forks Air Force
Base in North Dakota on 19 April 2000.

8.  On 20 April 2000 the Army Reserve Command at Fort McPherson, Georgia
published orders releasing the applicant from attachment to the “114 MC
Hosp Combat Spt Hosp” at Fort Snelling, and assigned him to Company B,
MAMC, effective on 9 April 2000.  The orders stated that the applicant
would be deleted from USAR strength on the effective date of the order.
9.  On 17 May 2000 the Field Artillery Center and Fort Sill, Fort Sill,
Oklahoma, assigned the applicant to Battery A [Personnel Control Facility),
Personnel and Support Battalion at Fort Sill effective on 19 April 2000.
His component shown on the assignment orders is USAR (United States Army
Reserve).

10.  On 26 April 2000 court-martial charges were preferred against the
applicant for AWOL.  On 7 June 2000 the applicant’s commanding officer
recommended trial by special court-martial empowered to adjudge a bad
conduct discharge.

11.  On 14 August 2000 the applicant’s defense counsel requested a delay in
the trial in order to file motions.  Counsel submitted motions in August
and in September 2000, the last on 15 September 2000 to dismiss the charges
against the applicant with prejudice.

12.  On 5 September 2000 a sanity board convened at Fort Sill, Oklahoma
because of defense counsel’s concerns that the applicant might not be
competent to stand trial, and might not be mentally responsible for his
actions.  The board diagnosed the applicant’s condition as major depressive
disorder, recurrent, moderate; personality disorder not otherwise
specified; hypertension, benign prostate hypertrophy, and fibromyalgia; and
legal troubles and medical issues.  The board, however, found that the
applicant did not have a severe mental disease or defect at the time of his
AWOL, and that at the time of his AWOL, the applicant was able to
appreciate the nature, quality, or wrongfulness of his conduct.  The board
found that the applicant had the mental capacity to understand the nature
of the proceedings and to cooperate intelligently in his defense.

13.  On 21 September 2000 the applicant was convicted by a special court-
martial for AWOL and sentenced to forfeit $1062 per month for one month and
to be reduced to specialist, pay grade E-4.  On 3 November 2000 the Staff
Judge Advocate recommended to the convening authority that the sentence be
approved and ordered executed.  On 13 December 2000 the convening authority
approved the sentence and directed that it be executed.

14.  In an 8 September 2000 sworn statement, a Soldier stated that the
applicant made rude and profane comments to another Soldier.  In a 15
November 2000 sworn statement, a female Soldier stated that the applicant
was rude and disrespectful toward her, that he threw a purse at her, and
tried to knock some trays from her hands.  On 22 November 2000 the
applicant was counseled for violating Personnel Control Facility rules.

15.  On 29 November 2000 the applicant’s commanding officer notified the
applicant that he was initiating action under the provisions of Army
Regulation 635-200, paragraph 14-12c, to separate him for misconduct,
commission of a serious offense – for AWOL from 10 March 2000 until 19
April 2000, wrongful use of provoking and reproachful words toward a
subordinate Soldier on              5 September 2000, assaulting a female
Soldier on 14 and 15 November 2000, and willful disobedience of superior
commissioned officer on diverse occasions between on or about 13 October
2000 and 26 October 2000.  He informed the applicant that he was
recommending that he be separated with an under other than honorable
conditions discharge.

16.  The applicant consulted with counsel, and stated that he had been
advised of the basis for the contemplated action, of the rights available
to him, and the effect of any action taken by him in waiving his rights.
He requested consideration of his case by an administrative separation
board.

17.  On 1 February 2001 the applicant withdrew his request for an
involuntary separation board, requesting immediate separation from the
Army, involuntarily or otherwise.

18.  On 15 February 2001, the applicant consulted with counsel and waived
consideration of his case by an administrative separation board contingent
upon his receiving a characterization of service of general, under
honorable conditions. He stated that he was making his request of his own
free will and had not been subjected to any coercion whatsoever by any
person.   On 22 March 2001 the separation authority approved his request
and directed that a General Discharge Certificate be furnished to the
applicant.

19.  The applicant was discharged for misconduct under the provisions of
Army Regulation 635-200, paragraph 14-12c, under honorable conditions
(general) on 5 April 2001.  He had 40 days of lost time.  His DD Form 214
reflects his component as RA (Regular Army).

20.  On 24 March 2004 the applicant appeared before the Army Discharge
Review Board pursuant to his request to upgrade his discharge to honorable.
 In a majority decision, the board granted his request to upgrade his
discharge to honorable; however, did not change the reason for his
discharge.  The applicant was provided a DD Form 214 showing that his
characterization of service was upgraded to honorable on 2 April 2004.

21.   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.  Paragraph 14-
12c states that Soldiers are subject to separation for commission of a
serious military or civil offense, if the specific circumstances of the
offense warrant separation and a punitive discharge would be authorized for
the same or a closely related offense under the MCM (Manual for Courts-
Martial).  An absentee returned to military control from a status of absent
without leave or desertion may be separated for commission of a serious
offense.  An under other than honorable conditions certificate is normally
appropriate for a member discharged for misconduct.

22.  Section III of Chapter 2 of the above-mentioned regulation provides
for  administrative board procedures for separation.  Paragraph 2-5 states,
in effect, that when a Soldier waives his right to a hearing before an
administrative separation board, the case will be processed without
convening a board.  A Soldier may wish to waive his right to a hearing
before an administrative separation board contingent upon receiving a
characterization of service or description of separation higher than the
least favorable characterization authorized for the separation reason set
forth in the notice of separation action.  Soldiers electing to request a
conditional waiver will submit a completed request for conditional waiver.
Commanders will ensure that a Soldier is not coerced into waiving his right
to a hearing before an administrative separation board.

23.  Army Regulation 635-5 provides instructions for the preparation of the
       DD Form 214, and states that a DD Form 214 will be prepared for
Reserve component Soldiers separated for cause regardless of the length of
time of service on active duty.  It provides instructions for preparing
each item on that form.  Applicable in this case –

      a.  Item 6 – Reserve Obligation Termination Date - The completion
date of the statutory military service obligation (MSO) incurred by a
Soldier on initial enlistment in the Armed Forces.  A Soldier who enlisted
on or after 1 June 1984 has an MSO period of 8 years.  Prior to that date,
the MSO was 6 years.  For a Soldier discharged, dismissed, or dropped from
the Army rolls, or with an expired MSO, enter “00 00 00.”

      b.  Item 9 – Command to which transferred.  Enter the applicable
location dependent on the Soldier’s status on transition.

      c.  Item 12b – Separation date this period.  Enter the Soldier’s
transition date.  This date may not be the contractual date if the Soldier
is separated early.

      d.  Item 23 – Type of separation.  Enter the appropriate term, e.g.,
release from active duty, discharge, retirement, release from ADT, etc.
There is no term, “separated” shown as an option for this item.

      e.  Item 24 – Character of service.  Enter Honorable, Under Honorable
Conditions, Under Other Than Honorable Conditions, as appropriate.

      f.  Item 25 – Separation authority.  Obtain correct entry from
regulatory or directives authorizing the separation.  The regulatory
authority for a Soldier separated for misconduct, commission of serious
military or civil offense is Army Regulation 635-200, paragraph 14-12c.

      g.  Item 26 – Separation code.  Obtain correct entry from Army
Regulation 635-5-1, which provides the corresponding separation program
designator code for the regulatory authority and reason for separation.
Army Regulation 635-5-1 shows that a Soldier separated for misconduct under
the provisions of Army Regulation 635-200, paragraph 14-12c, will have a
separation code of JKQ entered on his DD Form 214.

      h.  Item 27 – Reentry code.  Army Regulation 601-210 determines
Regular Army and United States Army Reserve reentry eligibility and
provides regulatory guidance on the RE (reentry) codes.  Chapter 3 of that
regulation prescribes basic eligibility for prior service applicants for
enlistment.  That chapter includes a list of armed forces reentry codes.  A
reentry code of “3” will be entered on the DD Form 214 of a Soldier who has
lost time because of AWOL.

      i.  Item 28 – Narrative reason for separation.  This is based on
regulatory or other authority and can be checked against the cross
reference in Army Regulation 635-5-1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was a USAR Soldier and that his DD
Form 214 should be corrected to show his component was USAR, not RA, is
accepted. The applicant enlisted in the Army Reserve for 6 years on 19
January 1997, was ordered to active duty for training, went AWOL, and
remained on active duty pending court-martial proceedings.  After his court-
martial he continued on active duty pending separation proceedings, and was
discharged subsequent to approval of those proceedings.  None of these
events, however, changed his status from the time that he enlisted in the
USAR in 1997 until his discharge.  The applicant was a USAR Soldier on
active duty.  Consequently, the applicant’s DD Form 214 should be corrected
to show his component as USAR.
2.  The applicant enlisted in the Texas Army National Guard in 1984 and
continued his Reserve component service until his discharge.  He had no
statutory military service obligation.  Item 6 of his DD Form 214 is
correct.

3.  Item 9 of his DD Form 214 is correct.  He was not transferred to any
command, but discharged.

4.  Item 12b is likewise correct.  The applicant was discharged on 5 April
2001.

5.  Item 23 is also correct.  He was not released from active duty,
retired, or released from ADT, etc.  He was discharged from the Army, as
directed by the separation authority who approved the separation
proceedings.  Discharge equates to a complete and unequivocal separation
from a military status.  The applicant has no military status.

6.  The applicant’s characterization of service, item 24 on his DD Form
214, was upgraded to honorable.  No action is required by the Board in this
regard.

7.  Items 25, 26, and 27 on his DD Form 214 are correct.  The entries shown
are in accordance with the provisions of applicable regulations.

8.  Item 28 – Narrative reason for his separation, “Misconduct” is also
correct.  He was not discharged because he completed his active duty
obligation.  His active duty for training (ADT) ended when he failed to
complete the 91C course at Fort Lewis and subsequently went AWOL.  He had
no active duty obligation as he contends, but was discharged because of his
own misconduct.

9.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  The applicant was
entitled to have his case heard before an administrative separation board,
and initially requested appearance before such a board.  He changed his
mind, however, and withdrew his request, indicating that he wanted to be
discharged.  He then, after consulting with counsel, requested that he be
separated contingent upon receiving a general discharge, indicating that he
made this request of his own free will and had not been coerced by anyone.
The type of discharge directed and the reasons therefore were appropriate
considering all the facts of the case.  There is no evidence of coercion as
he contends, nor is there any evidence showing wrongdoing on the part of
officials at Fort Sill.

10.  Consequently, his request to correct his record to show that he was
released from active duty and returned to his Reserve unit subsequent to
his court-martial conviction is not granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___JP  __  ___TP __  ___KL __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that item 2 on the applicant’s 5 May 2001 DD Form 214 be
corrected by showing his component as USAR.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
correcting items 6, 9, 12b,  23, 24, 25, 26, 27, and 28 of his 5 April 2001
DD Form 214, and denial of his request to correct his record to show that
he was released from active duty and returned to his Reserve unit
subsequent to his court-martial conviction.




                                  _____ Jennifer Prater________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106173                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050215                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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