RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  2 October 2007
	DOCKET NUMBER:  AR20070003706 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Ann Campbell

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jeffrey 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 he be restored to the rank and pay grade of sergeant first class (SFC/E-7), with entitlement to back pay and allowances, and that he be granted a 15-year retirement.

2.  The applicant states, in effect, that his current record is unjust in that the circumstances requiring an administrative reduction to private (PVT/E-1) were overcome (eliminated by pardon and early release from confinement), and that a reversal action should have been executed with the issuance of a corrected     DD Form 214 (Certificate of Release or Discharge from Active Duty). 

3.  The applicant provides a copy of his DD Form 214 in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he enlisted in the Regular Army on 22 February 1978.  The applicant successfully completed basic combat training and advanced individual training at Fort Sill, Oklahoma.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 82C, Field Artillery Surveyor. 

3.  The applicant was promoted to SFC/E-7 with an effective date of 1 January 1986 and date of rank of 27 December 1985.

4.  The applicant reenlisted on 31 October 1991, for 4 years, with an established expiration of term of service of (ETS) date of 30 October 1995.



5.  At approximately 0400 hours, 18 April 1992, a police officer observed the applicant’s car stopped in a no standing/no parking area near a bar in Lawton, Oklahoma.  The officer approached the applicant’s vehicle and asked the applicant for his driver’s license, registration, and proof of insurance.  An argument ensued and the applicant attempted to close his open driver’s door and drive away.  The police officer reached through the open door in an attempt to shift the vehicle out of gear.  At that time the applicant pulled the door toward him, thus trapping the police officer.  He then drove off with the officer hanging onto the driver’s side door.

6.  The applicant’s car crashed through a wooden fence and landed upside down.  The police officer was thrown free and he then called for an ambulance and a tow truck.  He then extricated the applicant from his wrecked vehicle.

7.  On 4 May 1992, the Acting Commander, a Brigadier General, issued the applicant a Memorandum of Reprimand (MOR) for the criminal offense of operating a motor vehicle while under the influence of alcohol.  The MOR was imposed as an administrative action and was not punishment under the Uniform Code of Military Justice (UCMJ).  The commander stated that it was his intent to file this reprimand on his performance fiche, of his official military personnel file (OMPF). 

8.  On 13 October 1992, the applicant was tried for assault and battery upon a police officer.  He appeared with counsel and pled guilty in the District Court of Comanche County, Oklahoma.  He was found guilty and was sentenced to 1 year confinement, plus costs, fees, and assessments.  

9.  On 29 October 1992, the applicant's commander advised the applicant he was taking action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, section II, paragraph 14-5, for misconduct-civil conviction.  His reason was due to the applicant's conviction by civil court for assault upon a police officer and sentence to 1 year in prison.  He recommended that he received an other than honorable discharge.  The commander informed the applicant that the least favorable characterization of service he could receive would be under other than honorable conditions and that the separation authority could direct that his service be characterized as either under other than honorable or a general discharge.

10.  On 30 October 1992, the applicant was reduced in rank from Sergeant First Class to Private, E-1.  The reduction was announced in Order 304-508, Headquarters, US Army Field Artillery Center and Fort Sill. 
11.  On 6 November 1992, the applicant acknowledged notification and, after consulting with legal counsel, requested a formal hearing before a board of officers.  

12.  On 9 November 1992, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-5, for misconduct, prior to his ETS.

13.  On 13 November 1992, a request was submitted to the GCMA (General Court Martial Authority) to convene a board of officers to determine if he should be discharged for misconduct, conviction by civil court.

14.  On 30 November 1992, the GMCA approved the request to convene an administrative separation board to determine if the applicant should be separated for misconduct.

15.  On 13 January 1993, a hearing was conducted and the applicant was present and represented by legal counsel.  After considering all matters, the board determined that the applicant was undesirable for further retention in the military service and recommended he be separated with an honorable discharge.

16.  On 22 February 1993, the Commanding General approved the board’s findings and recommendation.

17.  On 15 March 1993, the applicant requested that the approval authority suspend approval of his discharge pending approval of a recommendation for pardon from the Governor of Oklahoma.  He indicated that he was granted early parole and was recommended unanimously for a Governor’s pardon.  The parole allowed him to return to duty.  He also indicated that the recommendation would not be reviewed until 6 May 1993, the date of completion of his sentence.  He concluded by asking that his request be acted upon prior to his discharge date of 17 March 1993.

18.  The applicant was separated on 17 March 1993 with an honorable discharge, under the provisions of Army Regulation 635-200, chapter 14, section II, paragraph 14-5, for misconduct-civil conviction.  He had completed 15 years, 1 month, and 12 days of creditable service and 156 days of lost time due to civil confinement.



19.  Army Regulation 635-200, in effect, at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Section II, paragraph 14-5 pertained to conditions which subject Soldier to discharge and reduction in grade.  It stated that a Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty.  The sentence by civil authorities included confinement for 6 months or more, with regard to suspension or probation.  A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court would be reduced or considered for reduction in grade for misconduct (conviction by civil court).

20.  Army Regulation 600-8-19 provides policies and procedures for enlisted promotions and reductions.  Paragraph 6-3 provides that Soldiers convicted by a civil court and sentenced to an unsuspended sentence to confinement of 1 year or more will be reduced to the lowest enlisted grade.

21.  Table 6-1, of the regulation, states that if a Soldier's sentence includes death or confinement of 1 year or more that is not suspended, and is serving in any enlisted grade above E-1, the Soldier would be reduced to the lowest enlisted grade, E-1, without referral to a reduction board.   

22.  The Total Army Personnel Command (PERSCOM) message number        93-164, dated 20 April 1993, announced the criteria for the fiscal year 1993 Voluntary Early Retirement Program (VERP) (the first year the program was offered).  It stated, in pertinent part, that Soldiers with at least 15 years of active Federal service (AFS) but less than 20 years of AFS, in selected pay grades and 
military occupational specialties, could apply for early retirement.  Personnel who were approved for early retirement under the provisions of the Fiscal Year 1993 VERP were required to depart active duty no later than 30 August 1993.  The message listed the MOS, 82C, and the grade of rank of SSG (staff sergeant), and the minimum number of years for service for each MOS, 17 years.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant completed over 15 years, 1 month, and 12 days of honorable active military service on the date of his separation.  

2.  The applicant was involuntarily separated under the provisions of Army Regulation 635-200, section II, paragraph 14-5, due to a civil conviction.  Had the applicant not been processed for separation under these provisions, he would not have been qualified to retire for length of service under VERP provisions. Before his civil conviction he was serving in the rank SFC in the MOS 82C.  Noncommissioned officers in the rank SFC in this MOS were not included among those eligible for an early retirement; therefore, he was not eligible for a 15-year retirement.  

3.  According to regulation, the applicant was required to be reduced to the lowest enlisted grade for his misconduct, for his civil conviction since his sentence was for 1 year.  Therefore, there is insufficient basis to restore him to his original grade of SFC/E-7.  

4.  The applicant has provided no evidence to show that an injustice occurred during his discharge proceeding or that a reversal action should have been executed prior to his discharge with the issuance of a corrected DD Form 214.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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

__LD____  __JR____  __AMC__  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.




__       Ann M. Campbell______
          CHAIRPERSON



INDEX

CASE ID
AR20070003706
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071002
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19930317
DISCHARGE AUTHORITY
AR 635-200, chapter 14, paragraph 14-5
DISCHARGE REASON

BOARD DECISION
DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.