RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 October 2005
      DOCKET NUMBER:  AR20040008170


      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             |
|     |Ms. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 his release from active duty (REFRAD) date
be adjusted from 24 February 2003 to 5 January 2004 to reflect his
dismissal date, that he be paid for all accrued excess leave effective
1 March 2003, and that he be placed in the Retired Reserve.

2.  The applicant states that Orders 55-2, dated 24 February 2003, should
be invalidated and that his appellate leave was requested but no action was
initiated.

3.  The applicant provides copies of his 20 Year Letter (Notification of
Eligibility for Retired Pay at Age 60), separation orders, memorandum from
the Defense Finance and Accounting Service (DFAS), Leave and Earning
Statement (LES), appellate review decision, court-martial order Number 2,
dated 5 January 2004, and a copy of his summary of retirement points.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the Reserve
as a chief warrant officer two (CW2/W-2) effective 5 May 1986, with prior
military service.  He was promoted to chief warrant officer three (CW3/W-3)
effective 5 May 1992.

2.  On 15 October 1993, the Army Reserve Personnel Center (ARPERCEN)
notified the applicant that he had completed the required years of service
to be eligible for retired pay upon his application for retired pay at age
60 (20-Year Letter).

3.  He was extended Federal Recognition and appointed in the Louisiana Army
National Guard (LAARNG) on 1 October 1996, in the pay grade of W-3.  He was
separated from the LAARNG on 13 September 1997 and was transferred to the
USAR Control Group.

4.  He was ordered to active duty (AD) in the Active Guard Reserve (AGR)
effective 29 September 1997, in the pay grade of W-3, for a period of
3 years with assignment to the 70th Regional Support Command (RSC) in Fort
Lawton, Washington.

5.  He was promoted to chief warrant officer four (CW4/W-4) effective 5 May
1998.

6.  The applicant provides a copy of his LES for the period 1 to
31 December 2000, which shows that he had a cumulative leave balance of
62 days.

7.  In accordance with his plea, he was found guilty by a general court-
martial on 22 January 2001, of forcible oral sodomy on a 17 year old
exchange student on 2 September 2000.  His sentence consisted of a
forfeiture of all pay and allowances, confinement for 4 years, and
dismissal from the service.  The convening authority approved the sentence
on 3 August 2001, with exception of confinement for four years, which was
mitigated to confinement for 36 months.

8.  On 24 February 2003, orders were published releasing the applicant from
the U.S. Disciplinary Barracks (USDB), Fort Leavenworth, Kansas, effective
28 February 2003, with assignment to the U.S. Army (USAR) Control Group
(Standby), in the pay grade of W-4.

9.  On 9 April 2003, DFAS prepared a memorandum for the applicant, Subject:
Settlement of Account.  DFAS informed the applicant that his account had
been audited through 28 February 2003, with no pay due to the Soldier and
that his allotments were discontinued and last sent during the month of
December 2000.  His last pay was received in January 2001.  The computation
was completed with information available at the time.

10.  On 1 May 2003, the Office of the Inspector General (IG), U.S. Army
Combined Arms Center (USACAC) and Fort Leavenworth responded to the
applicant's request dated 21 February 2003.  The IG informed the applicant
that his issue was referred to the U.S. Army Personnel Command (PERSCOM) IG
office for clarification.  That office determined that there was a systemic
problem in the procedures used for processing REFRAD requests between
PERSCOM and the USDB Directorate of Inmate Administration.  As a result,
corrective measures were implemented that would prevent any further
recurrences.  Due to this action, the applicant was issued a military
identification (ID) card prior to his REFRAD.

11.  On 29 May 2003, the United States Army Court of Criminal Appeals
(ACCA) affirmed the findings and sentence.

12.  On 28 August 2003, the applicant's conviction became final when the
United States Court of Appeals for the Armed Forces (CAAF) denied his
petition for a grant of review.

13.  On 5 January 2004, General Court-Martial Order Number 2 was published.
The provisions of Article 71(b) and 74 (UCMJ) having been complied with,
the dismissal was ordered into execution.
14.  The applicant's Summary of Retirement Points shows that he had
completed 30 years of qualifying service for retirement purposes.

15.  In the processing of this case a staff advisory opinion was provided
by the Office of the Provost Marshal General (OPMG).  The opinion stated
that:

      (a) The applicable regulations, in effect during the relevant time
period of February 2003, were Army Regulation 190-47, The Army Corrections
System (dated 15 August 1996), and Army Regulation 600-8-24, Officer
Transfers and Discharges (dated 21 July 1995);

      (b) Army Regulation 190-47 did not contradict Army Regulation 600-8-
24.  At that time, the discharge separation, and the release of Reserve
officers awaiting appellate review of an adjudged dismissal were only
addressed in Army Regulation 600-8-24, paragraphs 1-17, 2-35, 2-36, 5-17,
and 5-18.  The opinion noted that the current version of Army Regulation
190-47 did contain provisions similar to Army Regulation 600-8-24;

      (c) Army Regulation 600-8-24, paragraph 1-7 and Army Regulation
135-175, paragraph 1-3a(4) did not invalidate Order Number 55-2 issued by
the Commandant, USDB, dated 24 February 2003.  The Commandant had general
court-martial (GCM) convening authority over the applicant and issued the
REFRAD order in accordance with Army Regulation 600-8-24, paragraphs 2-35b
and 2-36. The REFRAD order was not a discharge or dismissal order;

      (d) The applicant‘s dismissal was approved and ordered executed by
the Assistant Secretary of the Army (Manpower and Reserve Affairs) in
General Court-Martial Order Number 2, dated 5 January 2004.  This action
was in accordance with Article 71b, UCMJ (Title 10 U.S. Code 871);

      (e) The applicant’s application contains no evidence that he had
requested voluntary excess leave as stated on his DD Form 149 (Application
for Correction of Military Record), block 6; and

      (f) The applicant’s application included a two-page memorandum
requesting a waiver to Army Regulation 190-47.  This memorandum had the
following discrepancies: (1) memorandum was undated and unsigned; (2) the
subject block on the first page did not correspond to the subject block on
the second page.  The subject block on the second page referred to an IG
complaint by another inmate, not the applicant; and (3) OPMG had no record
that his memorandum was ever received, or acted upon, by the Department of
the Army.

16.  The applicant was provided a copy of the advisory opinion for possible
rebuttal or comment prior to consideration of his case.

17.  In his rebuttal, the applicant stated that paragraph 2a of the opinion
incorrectly stated that the regulation in effect at the time in question
(February 2003), Army Regulation 600-8-24, Officer Transfers and
Discharges, was dated 21 July 1995.  He states that he possessed a copy of
the regulation which was in effect and is what he referenced in submitting
his application.  However, he did not possess a copy of Army Regulation 190-
47, dated 15 August 1996, but in review of the regulation, dated 5 April
2004, the Army has shown a need to address this issue which attests to the
correctness of his request.

18.  He stated that Army Regulation 600-8-24, paragraph 2-35b and 2-36
would be applicable to a Reserve Officer in a TPU status and not
commissioned.  Since he was neither, it could not apply to him in this
instance.  His status as a USAR AGR commissioned officer would then make
paragraph 2g applicable.  Army Regulation 600-8-24, paragraph 2-36, Table 2-
16, specifically stated the procedure for REFRAD pending appellate review
and nowhere does it state that the Commandant of the confinement facility
had that authority.

19.  While the REFRAD order was not a discharge or dismissal, it had the
effect of preventing him from going on appellate leave.  Paragraph 2d was
correct and the date of execution of the order, dated 5 January 2004,
should be reflected in the date of separation of his DD Form 214.

20.  As an inmate of the USDB, he had no access to the proper documentation
(DA Form 31) but the request was made verbally (referencing Army Regulation
600–8-10, paragraph 5-24) while out-processing the facility but was denied
stating a REFRAD order had already been published.  A complaint to the IG,
Fort Leavenworth, Kansas, was promptly made at that time.

21.  He stated that paragraph 2f of the opinion was totally erroneous as he
had never submitted a memorandum requesting a waiver to Army Regulation 190-
47. The memorandum was not listed as an enclosure with his application.  It
was obvious that documentation was somehow mishandled and improperly
included.  As a 420A8, Military Personnel Officer, he definitely would have
known how to prepare and submit a memorandum.





22.  Army Regulation 600-8-10 (Leaves and Passes) covers leave and pass
programs. It prescribes polices, operating tasks, and steps governing
military personnel absences.  Paragraph 5-15 states that excess leave may
be granted in emergencies or unusual circumstances.  The aggregate of all
leave granted normally will not exceed 60 days for any one period of
absence.  The aggregate of leave granted includes accrued, plus advance (to
include the unaccrued portion of advance leave previously granted), plus
excess leave, and that excess leave will be granted only upon request of
the Soldier.  It also states that the request must contain a statement
which ensures Soldiers are aware that periods of excess leave are without
pay and allowances, and that no leave accrues to Soldiers during periods of
excess leave.

23.  Paragraph 5-21 of the same regulation states that the GCM authority is
the approval authority.  Leave may be approved if the GCM authority
believes that the best interest of the service would be served by granting
the request and:     (a) the Soldier has been sentenced by court-martial to
a dismissal or punitive discharge; (b) the sentence has not been approved;
(c) and the adjudged confinement has been served, deferred, or suspended
prior to leave.

24.  Army Regulation 135-175 provides policy, criteria, and procedures
governing the separation of officers of the Army National Guard (ARNG) of
the United States (ARNGUS) and the USAR, except for officers serving on
active duty or active duty training exceeding 90 days.  Paragraph 1-3
states that Reserve Component (RC) officers will be separated only by; (a)
The Secretary of the Army; (b) commanders specified in this regulation
under conditions set forth in this and other pertinent regulation; (c)
commanders specified in special directives of the Secretary of the Army
under the conditions in these directives; and (d) the discharge authority
delegated to commanders by this regulation will not include authority to
discharge an officer under a court-martial sentence to dismissal, prior to
completion of appellate review, unless the discharge authority intends the
discharge to act as a remission of the conviction.

25.  Army Regulation 140-10, in effect at the time, set forth the basic
authority for the assignment, attachment, detail and transfer of USAR
Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers
from active status and states, in pertinent part, that Soldiers removed
from an active status will be discharged or, if qualified and if they so
request, will be transferred to the Retired Reserve.





26.  Army Regulation 135-180 provides policy for the granting of retired
pay to Soldiers and former Reserve Component Soldiers.  It states, in
pertinent part, that pay is granted after completion of 20 or more years of
qualifying service and upon attainment of age 60.  It states that each
qualified individual is responsible to submit an application for retired
pay (DD Form 108 [Application for Retired Pay Benefits]) 6 months prior to
age 60 and that those without a current military status may obtain the form
from a local Reserve Component unit or by writing the Army Human Resources
Command (AHRC)-St. Louis.

27.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes
policies and procedures governing transfer and discharge of officer
personnel.  Section 11 pertains to principles and standards.  Paragraph 1-9
covers principles of support.  It states that the military personnel system
will direct a function to:  (a) provide a mechanism to terminate the
services of an officer prior to the terms of the original contract (both
voluntarily and involuntarily); (b) provide authority to transfer officers
from one component to another; (c) provide authority to discharge officers
from all military obligations; (d) and support the Army's personnel life-
cycle function of transition.  Paragraph 1-17 pertains to an officer
awaiting appellate review of adjudged dismissal or dishonorable discharge.
It states that an officer who has been convicted and sentenced to dismissal
or dishonorable discharge will not be discharged prior to completion of
appellate review without prior approval of the Commanding General, Army
Human Resources Command (AHRC).  A Regular Army (RA) officer may be
processed for excess leave under Army Regulation 600-8-10.  A Reserve
Component (RC) officer may be released from active duty (AD) under cited
paragraphs of this regulation.

28.  Paragraph 2-35 pertains to rules for processing involuntary REFRAD
pending appellate review.  It states, in pertinent part, that a Reserve
officer sentenced to dismissal (commissioned) or dishonorable discharge
(warrant officer who is not commissioned) may be released from AD prior to
appellate review completion, upon completion of confinement.

29.  Army Regulation 190-47 covers policies governing the Army Corrections
System and implements Department of Defense (DOD) Directive 1325.4,
confinement of military prisoners and administration of military
correctional programs and facilities.  It applies to the Active Army, USAR,
and ARNG when in Title 10, United States (US) Code status.




30.  Paragraph 8-3d prohibits the return to military service of Reserve
Component personnel called to active duty who later become prisoners or
parolees.  Reserve Component personnel called to active duty who later
become parolees are not eligible for return to military service.  Officer
and warrant officer prisoners are not eligible for restoration in their
former status.

31.  Paragraph 8-23 pertains to change in status.  It states that if the
sentence to confinement of a parolee expires prior to completion of
appellate review, the Commander, USDB, will transfer the prisoner to an
excess leave without pay status.  A DA Form 31 is required to grant excess
leave.

32.  Paragraph 8-3(h)(5)(a), of the current version of Army Regulation 190-
47, dated 5 April 2004, mandates the requirements concerning commissioned
and warrant officer prisoners.  It states that "an Active Army officer who
has been sentenced to dismissal (commissioned) or dishonorable discharge
(warrant officer who is not commissioned) will not be discharged prior to
completion of appellate review without the prior approval of the CG,
PERSCOM (see AR 600–8–24, paragraph 1–17)."  An RA officer whose sentence
includes dismissal or dishonorable discharge may be returned to duty or
processed for excess leave while appellate review is pending (see AR
600–8–24, paragraph 1–17).  It further states that "a Reserve officer whose
sentence includes a dismissal or dishonorable discharge may be released
from active duty prior to completion of appellate review, upon completion
of confinement (see AR 600–8–24, paragraph 2–35b)."

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was promoted to CW4, was issued a
20-Year Letter, and had an accrued leave balance of 62 days on 31 December
2000.

2.  The evidence shows that the applicant was found guilty by a general
court-martial of forcible oral sodomy on a 17 year old exchange student.

3.  Trial by court-martial was warranted by the gravity of the offenses
charged.
The sentence of the general court-martial included a forfeiture of pay and
allowances, confinement for 4 years, and dismissal from the service.  The
sentence was approved, except for so much of the sentence that provides for
his confinement for 4 years which was mitigated to confinement for
36 months.

4.  The applicant was confined until his release on 24 February 2003 and he
was assigned to the USAR Control Group (Standby) in the pay grade of W-4.

5.  The applicant was informed by DFAS on 9 April 2003 that his account had
been audited through 28 February 2003, with a no pay due.  His allotments
were discontinued and last sent during the month of December 2000 and his
last pay was received in January 2001, with computation completed.

6.  The applicant inquired of the IG, USACAC, on 21 February 2003,
regarding procedures used for processing REFRAD; however, his request was
unavailable for review.  He was informed that his issue was referred to the
PERSCOM IG office for clarification.  PERSCOM determined that there was a
systematic problem in the procedures used for processing REFRAD requests by
PERSCOM and the USDB Directorate of Inmate Administration.  Corrective
measures were implemented that would prevent any further recurrences.  Due
to this action, the applicant was issued an ID card prior to his REFRAD.

7.  The CAAF affirmed the sentence and the applicant's petition for review
was denied.  His dismissal was ordered executed.

8.  The evidence shows that the applicant had completed 30 years of
qualifying service for retirement purposes.

9.  In the advisory opinion, OPMG cited the regulations in effect during
the relevant time period of February 2003.  OPMG stated that Army
Regulation
190-47 did not contradict Army Regulation 600-8-24 and that the release of
Reserve officers awaiting appellate review of an adjudged dismissal was
only addressed in Army Regulation 600-8-24.  OPMG noted that the current
version of the Army Regulation 190-47 did contain provisions similar to
Army Regulation 600-8-24.

10.  OPMG stated that Army Regulation 600-8-24 and Army Regulation 135-175
did not invalidate Orders Number 55-2, dated 24 February 2003.  The
Commandant had GCM convening authority over the applicant and issued the
REFRAD order according to regulation.  The order was not a discharge or
dismissal order.

11.  The OPMG indicated that the applicant's dismissal was approved and
ordered executed by General Court-Martial Order 2, dated 5 January 2004 and
that his application contained no evidence that he had requested voluntary
leave as stated on his application.

12.  The OPMG concluded that the applicant's application included a two
page memorandum requesting a waiver to Army Regulation 190-47.  The
memorandum consisted of several discrepancies and they had no record of the
memorandum ever being received or acted upon by the Department of the Army.


13.  The applicant rebutted the OPMG opinion and stated that he possessed
the correct regulations and that the Army had shown a need to address the
issue which attested to the correctness of his request.  He indicated that
Army Regulation 600-8-24 would be applicable to a Reserve Officer in a TPU
status and not commissioned and that it would not apply to him in this
instance.  His status would make paragraph 2g, of Army Regulation 600-8-24
applicable.  The regulation specifically stated the procedures for REFRAD
pending appellate review and nowhere does it state that the Commandant had
that authority.

14.  The applicant's REFRAD order was not a discharge or dismissal but had
the effect of preventing him from going on appellate leave.  As an inmate,
he had no access to proper documentation, such as a DA Form 31 (Request and
Authority for Leave), but made a verbal request while outprocessing the
facility.  He was denied leave stating that a REFRAD order had already been
published.  The applicant promptly made a complaint to the IG.

15.  The applicant stated that paragraph 2f of the opinion was incorrect as
he had never submitted a memorandum requesting a waiver to Army Regulation
190-47 and the enclosure was never listed with his application.  It was
apparent that the documentation was somehow mishandled and improperly
included.

16.  The applicable regulation, Army Regulation 135-175, clearly stated
that the discharge authority delegated to commanders by this regulation
would not include authority to discharge an officer under a court-martial
sentence to dismissal, prior to completion of appellate review, unless the
discharge authority intended the discharge to act as a remission of the
conviction.  Army Regulation 600-8-24 stated that an officer who had been
convicted and sentenced to dismissal would not be discharged prior to
completion of appellate review without prior approval by the appropriate
authorities.

17.  The applicant was released on 24 February 2003 upon completion of his
confinement and prior to his appellate review.  His General Court-Martial
Orders, dated 5 January 2004, which indicated that the provisions of
Article 71(b) and 74 (UCMJ) had been complied with, ordered the dismissal
into execution.  Therefore, there is no basis to change his REFRAD date to
coincide with the date of his discharge on 5 January 2004.

18.  In accordance with regulation, excess leave is granted in emergencies
and under unusual circumstances.  All periods of excess leave are without
pay and allowances.  The GCM authority may approve excess leave if the best
interest of the Service would be served by granting the request and if the
Soldier met the required criteria of the regulation.  There is insufficient
evidence to show that the applicant was approved for excess leave.
Therefore, he is not entitled to be paid for excess leave effective 1 March
2003.

19.  The applicant may have met basic eligibility for transfer to the
Retired Reserve as indicated by the issuance of a 20-Year Letter; however,
he was released, due to his misconduct, by a general court-martial.  The
applicant would remain eligible for retirement benefits at age 60 and must
apply when he reaches age 59 and a half.  Therefore, the applicant is not
entitled to be transferred to the Retired Reserve at this time; however, he
is entitled to retired pay upon application at the appropriate time.  The
applicant will remain assigned to the USAR Control Group (Standby).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ALR__  ____MM_  _LDS____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  _____Melvin H. Meyer_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008170                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051027                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20030228                                |
|DISCHARGE AUTHORITY     |AR 140-10                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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