RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 November 2007
      DOCKET NUMBER:  AR20070002829


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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, in effect, that his date of discharge be
changed to May 2005.

2.  The applicant states, in effect, that his discharge date should be
changed to May 2005 to more accurately reflect the actual date of his
separation.  He states that he was confined to a civilian facility in
Washington State in 2003, and his command, although supportive of him,
failed to process his discharge so in 2005, when he was released from the
facility, he was still on active duty.  Instead of consulting records of
any kind, the transition office at Fort Lewis, Washington typed up an
illegal separation document (DD Form 214) and picked a random date in 2003
to back date it to.  He states this date needs to be changed to 2005 to
accurately reflect when he was discharge.

3.  The applicant claims the error was made when the Judge Advocate General
(JAG) attorney handling his file was released from active duty and failed
to pass his case to another attorney.  The error was also caused by the
command's failure to respond to the Army's Human Resources Command (HRC)
attempt to discharge him without dropping him from the rolls.  In fact,
even through they now claim he was dropped from the rolls, which is
completely false, he was carried as absent without leave (AWOL) for three
years because of the failure of the command to properly separate him.  He
states that despite more than 50 phone calls from the confinement facility
they did nothing to fix the mess which has now resulted in the Defense
Finance and Accounting Service (DFAS) sending him a bill for $35,000.00.
He states that he finds it hard to believe the Government he served
believes in fixing it's own mistakes by passing the overwhelming burden of
that mistake on to the one person that was doing what they could do to
correct the problem.

4.  The applicant provides a self-authored statement, chronology of events
and separation document (DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he initially entered active duty in
the Regular Army in an enlisted status on 30 January 1991.  He served in
that status for 7 years, 3 months and 21 days until being honorably
discharged on 20 May 1998, in the rank of sergeant, in order to accept a
warrant officer appointment.

2.  On 21 May 1998, the applicant was appointed a Reserve Warrant Officer,
in the rank of Warrant Officer One (WO1), and entered active duty in that
status.  On 21 May 2000, the applicant was promoted to the rank of Chief
Warrant Officer Two (CW2).

3.  On 23 May 2003, after having been found guilty of vehicular
manslaughter, the applicant was sentenced to 3 years confinement in a
Washington State confinement facility by civil authorities in the State of
Washington.

4.  On 25 June 2003, the applicant's commander initiated action to separate
the applicant under the provisions of Paragraph 2-33, Army Regulation 600-8-
24, by reason of Civil Conviction in a State Court.  The chain of command
recommended the applicant receive a general, under honorable conditions
discharge (GD).

5.  On 20 October 2003, the Deputy Assistant Secretary (Army Review Boards)
returned the applicant's separation packet to HRC and asked that
consideration be given to dropping the applicant from the rolls of the
Army.

6.  The applicant's record is void of a complete separation packet
containing all the facts and circumstances surrounding his discharge
processing after the packet was returned to HRC by the Deputy Assistant
Secretary (Army Review Boards).  The record does contain a properly
constituted DD Form 214 that shows the applicant was discharged on 26
November 2003, under the provisions of Paragraph 5-15A(1), Army Regulation
600-8-24, by reason of misconduct.  It also confirms he received an under
other than honorable conditions (UOTHC) discharge.

7.  On 25 August 2006, the Army Discharge Review Board (ADRB), after
carefully reviewing the applicant's record, determined the applicant's
discharge was too harsh and it voted to upgrade his discharge to a GD.  The
ADRB stipulated that it did not condone the applicant's misconduct;
however, his overall length and qualify of service mitigated the
discrediting entry in his service record. The ADRB noted that the authority
and reason for the applicant's discharge were proper and equitable and it
voted not change them.

8.  The applicant provides a chronology of events that indicates he was
convicted of vehicular homicide on 7 March 2003, and was sentenced to three
years in prison on 23 May 2003.  He claims that in September 2003, he was
informed his commanding general approved a GD and that he would receive the
paperwork shortly and would have the opportunity to rebut by signing and
returning the memorandum included.  He claims shortly thereafter, he
received the paperwork and signed the memorandum.
9.  The applicant's timeline indicates that between November 2003 and May
2004, he made at least 20 calls to the JAG officer in an attempt to contact
his attorney or any other lawyer for assistance.  He states he finally made
contact with a JAG attorney in the May to July 2004 timeframe and this
lawyer indicated she would try and find out what happened in his case.  He
states that in the August 2004 to March 2005 timeframe, he had numerous
conversations with his attorney, who still had not found the paperwork on
his case.  He states he was advised that there was not much he could do
until he was released, at which time he should report to Fort Lewis.

10.  The applicant's timeline further shows that In March 2005, he was
transferred to work release in Olympia, Washington, and after speaking with
his attorney, he faxed a document to her with his confinement dates and she
in turn passed it to a finance official who indicates he is in a deserter
status.  After being unable to contact his attorney during March 2005, he
finally talked to her in April 2005 and informed her he could not report to
Fort Lewis until he was totally released in May 2005.  At this time, he was
contacted by a transition official who informed him he was told to separate
him from the service and asked for his records.  He informed this official
he should contact his attorney.  In April 2005, he contacted the offices of
a Senator and Congressman requesting assistance in stopping his expedited
discharge, which he could see was taking place.

11.  The applicant's chronology of events shows that on 6 May 2005, he
received his separation document and UOTHC discharge, which were dated 28
November 2003, in the mail.  He was released from the work release facility
on 12 May 2005, and received his CG's response to his Congressional
Inquiries in June 2005.  In August 2005, he went to Fort Lewis to meet with
the transition official who completed his discharge documents.  He was
provided a memorandum from HRC, which the transition official stated was
the authority for his discharge.  In September 2005 he met with members of
the Inspector General (IG) office at Fort Lewis and briefed them on the
events surrounding his discharge.  In October 2005, he again met with the
transition official who effected his discharge and was informed his
discharge had been directed by Department of the Army and that his records
had been forwarded to St. Louis.  In September 2005, he submitted a request
to the ADRB and in August 2006, the ADRB upgraded his discharge.

12.  The applicant's timeline shows that in August 2006, he received a
letter from DFAS stating he owed the Government $35,000.00 for overpayment
back in 2003 and 2004.  He responded and informed DFAS he was still
contesting his illegal discharge and asked what he needed to keep his
account in good standing while he was taking this action.  In September
2006, he received another letter from DFAS stating he owed $35,000.00 for
overpayment in 2003 and 2004, and he again asked what he could do to keep
his account in good standing while he contested his discharge.

13.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes
the officer transfers from active duty to the Reserve Component (RC) and
discharge functions for all officers on active duty for 30 days or more.
Chapter 5 prescribes disposition and procedures concerning miscellaneous
types of separations whereby an officer may be dismissed, released,
separated, and discharged from AD. In addition it provides procedures
whereby officers on active duty or retired may be dropped from the rolls of
the Army.  Paragraph 5-15 provides the rules for processing an officer who
is dropped from the Army rolls.  It states, in pertinent part, that under
the provisions of 10 USC 1161 and 12684, the Secretary of the Army or their
designee may drop any commissioned officer from the rolls of the Army who
is not entitled to receive retired pay and has been found guilty by civil
authorities of any offense and sentenced to confinement in a Federal or
State penitentiary or correctional institution and their sentence has
become final.

14.  Department of Defense Financial Management Regulation (DODFMR)
prescribes the policies for military pay.  Paragraph 10302 provides
guidance on pay during periods of unauthorized absences and other lost
time.  It states, in pertinent part, that a member who is confined by civil
authorities who was tried and convicted may not have his absence excused as
unavoidable and is not entitled to pay and allowances except for the period
that is covered by authorized leave, liberty or pass.  A member is not
entitled to pay and allowances if granted a pass or liberty to serve civil
confinement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was illegally discharged was
carefully considered.  However, by regulation, a member who is tried,
convicted and confined by civil authorities is not entitled to pay and
allowances except for the period covered by authorized leave, liberty or
pass, and an officer who is not entitled to receive retired pay and has
been found guilty by civil authorities of any offense and sentenced to
confinement in a Federal or State penitentiary or correctional institution
may be dropped from the rolls of the Army.

2.  Although the specific facts and circumstances surrounding his discharge
processing are not on file, the evidence of record confirms that on 23 May
2003, after having been found guilty of vehicular manslaughter, the
applicant was sentenced to 3 years confinement in a Washington State
confinement facility by civil authorities.  It further shows that
separation action was initiated on him for civil conviction in June 2003,
and that in October 2003, the Deputy Assistant Secretary (Army Review
Boards), recommended that dropping the applicant from the rolls of the Army
be considered.  The record also contains a properly constituted DD Form 214
that shows he was discharged under the provisions of Paragraph 5-15A(1),
Army Regulation 600-8-24, by reason of misconduct on
26 November 2003.

3.  Based on his conviction for vehicular manslaughter in a civil court and
the resulting sentence of 3 years in confinement in a civilian confinement
facility, upon his entry into confinement, the applicant forfeited his
entitlement to pay and allowances, and was properly dropped from the rolls
of the Army in accordance with the applicable law and regulation.

4.  Even if the applicant was unaware of the specific authority being used
for his separation, he was clearly aware his discharge action had been
initiated in June 2003, and should have known that he was in a no pay
status once he entered into civilian confinement.  Even if his separation
date were changed, he still would not have been entitled to pay and
allowances during the period of his civil confinement.  As a result, there
is an insufficient evidentiary basis to support granting the requested
relief.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEA  __  __LE ___  __JCR  __  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.




                                  _____James E. Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002829                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/11/01                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |2003/11/26                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |100.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]