RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 August 2007
      DOCKET NUMBER:  AR20070004308


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. William Blakely               |     |Member               |
|     |Mr. Donald L. Lewy                |     |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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reinstatement of the applicant’s fiscal year 1996
(FY96) early retirement program application and restoration of all rights
and privileges that may have been affected by the unjust revocation of his
approved application for early retirement.

2.  Counsel states that the applicant enjoyed a successful career in the
Army until about 25 September 1993 while in Augsburg, Germany, when his
wife (a Sergeant in the Army) alleged the applicant assaulted her.  The
applicant’s commander prepared a letter of admonition for this incident but
did not present it to the applicant until 3 February 1994.

3.  Counsel states that the applicant’s wife, then stationed at Fort
Campbell, KY, filed a report with the U. S. Army Criminal Investigation
Command (CID) alleging that “unknown person(s)” stabbed her while in the
basement of her residence [on 24 October 1993].  Several months after the
incident, on 3 February 1994, the applicant made a statement regarding the
incident at his home on 24 October 1993, recanting all previous statements.

4.  Counsel states that, on 22 February 1994, the applicant’s wife
identified the applicant as the person who stabbed her on 24 October 1993.
On 28 March 1994, charges were formally preferred against the applicant and
forwarded to the Commander, 66th Military Intelligence (MI) Brigade with a
recommendation for trial by general court-martial.

5.  Counsel states that, during pre-trial negotiations, the applicant
offered pleas of guilty and other conditions regarding the charges.  In
exchange for the pleas, the convening authority would refer the case to a
special court-martial.  The Commander, 66th MI Brigade accepted and
approved the applicant’s offer.  On 27 May 1994, the Commander, 66th MI
Brigade referred the charges to a special court-martial.  Counsel states
that there is no documentation to demonstrate how the case was referred to
a special court-martial, then suddenly an Article 32, Uniform Code of
Military Justice (UCMJ) investigation was appointed, and then a general
court-martial convened.  There is no evidence that the charges referred to
the special court-martial were ever formally withdrawn in order to allow
the referral to the general court-martial.
6.  Counsel states that the general court-martial announced its findings on
        21 October 1994, and on 7 December 1995 the applicant was sentenced
to forfeit $400.00 pay per month for one year and to be reduced to
Sergeant, E-5.

7.  Counsel states that the applicant submitted a request for early
retirement on   24 January 1996, and on that date his company commander
forwarded the request recommending disapproval.  On 30 January 1996, the U.
S. Total Army Personnel Command (PERSCOM) conditionally approved his
request for retirement, and on 6 February 1996 he was issued orders for
retirement on          1 March 1996.  On 21 February 1996, PERSCOM revoked
his early retirement.  On 14 June 1996, the applicant was honorably
discharged from the Army.

8.  Counsel states that the decision to impose, or not to impose,
disciplinary and/or administrative action against any member of a command
belongs to the commanding officer – and no one else.  Each commander has
discretion to dispose of offenses by members of that command, and a
superior commander may not limit the discretion of a subordinate commander
to act on cases over which authority has not been withheld.  Allegations of
offenses should be disposed of in a timely manner at the lowest appropriate
level of disposition.

9.  Counsel states that the applicant was apprehended on 25 September 1993
and accused of assaulting his wife.  His company commander asked that a
company grade Article 15 be prepared.  The applicant was subsequently told
  by his commander that he would instead receive a letter of admonition.
On       24 October 1993, the applicant was charged with assaulting his
wife.  After he admitted stabbing his wife, his company commander then gave
the applicant the letter.  Thereafter, court-martial charges were
preferred.

10.  Counsel states that each command of an accused is vested with
independent discretion regarding the disciplinary disposition of an alleged
offense.  A superior command cannot impinge upon the independent discretion
of a subordinate commander.  The applicant’s commander did not exercise
independent discretion when he recommended that the specification relating
to the October assault be disposed of at a general court-martial; in
effect, undue command influence was used.  Even the military judge did not
have confidence that the company commander’s recommendation was that of a
general court-martial.

11.  Counsel states that the military judge, at the request of the
applicant’s defense counsel, questioned the court-martial panel on the
voting procedures that were applied during the panel’s deliberations.  The
president of the panel revealed that the members had voted by secret
written ballot more than once as to each specification.  After first taking
a “straw” vote, when the vote revealed that at least two-thirds of the
members voted to convict as to specification 1, specification 2 was
extensively discussed since the “straw” vote revealed that less than two-
thirds voted to convict.  The military judge found that the straw ballot
was appropriate with respect to specification 1 as the members believed
their ultimate finding (of guilty) was the same as their straw vote.  In
regard to specification 2, the military judge found, however, that the
panel members’ first real ballot was also consistent with their straw
ballot (three-three).  The military judge found that the members did not
follow the court’s instruction that a tie vote amounted to a finding of not
guilty.  Thus, the military judge granted a finding of not guilty with
respect to specification 2.

12.  Counsel states that the Government appealed the decision of the
military judge.  The U. S. Army Court of Criminal Appeals granted the
Government’s appeal, and the findings of guilt as announced by the court-
martial members remained in effect.  On 22 September 1995, the U. S. Court
of Appeals for the Armed Forces affirmed the decision of the U. S. Army
Court of Criminal Appeals.

13.  Counsel states that the applicant was encouraged to request early
retirement upon completion of his court-martial proceedings and the
execution of his sentence.  He was led to believe his request would be
approved.  PERSCOM did approve his request and shortly thereafter issued
release from active duty orders.  The approval was not revoked until it was
realized the applicant needed to be held past his expiration of term of
service (ETS) date because the court-martial proceedings had not reached
its final review and action.  Yet, the revocation states the applicant did
not meet the eligibility requirements “…since he is not a promotable
Sergeant.”

14.  Counsel states that it is quite clear that the applicant would not
have been subjected to court-martial proceedings if his company commander
had been allowed to exercise his authority.  With the court-martial came
another serious breach of fairness, and that was the voting of the members
during their deliberations.  Although the Court of Criminal Appeals for the
Armed Forces decided against the applicant, it certainly leaves some doubt
as to what the members honestly felt about the evidence presented to them.
Finally, after accepting the court-martial findings and sentence, the
applicant elected to submit for early retirement.  Like the beginning of
the case against him, the ending of it was handled just as unfairly.

15.  Counsel provides the 32 documents listed as Attachments 1 through 32
in his petition.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 June 1996.  The application submitted in this case is dated
13 March 2007.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 12 November 1980.  He
last reenlisted on 13 March 1992 for 4 years.  He was promoted to Sergeant
First Class (SFC), E-7 on 1 May 1992.

4.  In a sworn statement dated 25 September 1993, the applicant’s wife
stated she had just returned home from a neighbor’s birthday party, and the
applicant was there with a friend.  The friend started playing with her
children, when the applicant took a lollypop from her oldest son.  Her son
started crying.  She asked the applicant for the lollypop, and the
applicant shoved it into her hand.  The friend sensed something was not
right and said he was leaving.  She let the friend out but kept the door
unlocked because she could tell there might be problems.  Once she released
the door handle the applicant grabbed her by the throat and pushed her into
the closed door.  She tried to reach for the door but he kept pulling her
by her throat.  She finally opened the door and started to scream. The
applicant then grabbed her hair and was pulling her and slinging her
around. She finally got to the door and tried to run in the hallway.  She
fell.  The upstairs neighbors were looking at him pulling on her when she
finally got away and ran into their neighbor’s [apartment] across the hall.
 She called for her children to come to her and then screamed for her
neighbor to call the military police.  She stated the applicant had
assaulted her before, about every week, taking place more on the weekends.

5.  The applicant’s company commander signed a Letter of Admonition, dated
13 December 1993.  He stated the purpose of the letter was to state his
concern for the applicant’s apprehension by military authorities on 25
September 1993.  He wanted to make it clear that the action he (the
commander) was taking was strictly an administrative remedy and was not
being administered as punishment under Article 15 of the UCMJ.  The letter
was to be retained in the local unit files for a period of one year and
would be destroyed if no further incidents or misconduct on the applicant’s
part occurred.

6.  In a sworn statement dated 3 February 1994, the applicant stated he
wanted to make a true statement concerning an incident that occurred on 24
October 1993 as his previous statements in that matter were not true.  He
stated he had called his wife at work.  It took her some time to get to the
phone, and she said she had been playing on the computer with a guy she
worked with.  The applicant stated that he was a somewhat jealous person,
and he probably said something he should not have said.  His wife said
something about a divorce and hung up the phone.  He stated he went over to
her house as they were still married and he had a key.

7.  The applicant further stated that once he got into the house, he
grabbed a knife from the kitchen.  Unintentionally, he ended up with two
knives in his hand.  He carried them both into the bedroom where his wife
was changing clothes.  They had words.  He accused her of telling lies in
her previous statement; she stated she told the truth.  He snapped, so he
stabbed her twice in the upper back.  It took some time for him to calm
down.  He told her he needed to call an ambulance to get her to the
hospital [where she was eventually treated for nine days].  She did not
want an ambulance.  He told her he had better call the military police and
turn himself in; she told him she did not want him to go to jail.  He only
meant to scare her.  He never thought he would get mad enough to do
anything with the knives.  He never pulled a knife on her before, but she
pulled one on him on two occasions.  He only lied before because his wife
somewhat begged him not to tell the truth.

8.  In a sworn statement, dated 22 February 1994 (when she was at Fort
Campbell, KY), the applicant’s wife stated she did not tell CID the truth
earlier because she was scared.  She stated the applicant, not an unknown
person, stabbed her.  She stated they were separated because they had been
in several domestic disturbances.  He called her on 24 October 1994,
sounding as though he had been drinking, and he was arguing with her.  She
hung up on him.  She got home and was getting the kids’ things ready for
the next day.  The applicant came in; she did not know he still had a key.
She did not see any knife.  He told her to go ahead and scream.  She
figured that would not help.  He came towards her and hit her on the back,
twice. She did not feel being stabbed.  He said he was going to kill her.
She tried to calm him down.  She told him she swore she would not tell
anyone.  He stood up and said she could call the military police.  She
asked him to take her to the hospital.  She did not tell the truth before
because she knew he would come after her, even if he went to jail.  She was
protecting herself and her boys.  Now that she was away from him, she felt
a little safer.
9.  On 28 March 1994, the applicant’s company commander preferred charges
against the applicant, charging him (charge I) with two specifications of
assaulting his wife (on 25 September 1993 and on 24 October 1993); and
(charge II) one specification of making a false statement under lawful oath
and one specification of wrongfully endeavoring to impede a criminal
investigation by providing a false sworn statement.

10.  In a memorandum, dated 28 March 1994, the applicant’s company
commander forwarded the court-martial charges to the battalion commander
with a recommendation of trial by general court-martial.  By first
endorsement, dated 28 March 1994, the battalion commander forwarded the
court-martial charges to the brigade commander with a recommendation of
trial by general court-martial.  On 29 March 1994, the brigade commander
appointed an investigating officer to investigate the charges against the
applicant.

11.  On 16 May 1994, the applicant made an Offer to Plead Guilty.  His
offer included the contingency that he be tried by a summary court-martial
officer.  His brigade commander did not accept his offer.

12.  On 20 May 1994, the applicant made another Offer to Plead Guilty.
After consulting with defense counsel, the applicant offered to:

      a.  plead guilty to specification I of charge I (except for certain
words); plead not guilty to specification 2 of charge I; and plead guilty
to specifications    1 and 2 of charge II;

      b.  enter into a written stipulation of fact correctly describing the
offenses to which he was offering to plead guilty;

      c.  request trial by military judge alone;

      d.  stipulate to the expected testimony of his wife and agreeing to
the admissibility of the stipulation;

      e.  stipulate to the admissibility of sworn statements he gave to
military police investigators/CID pertaining to the 24 October 1993
incident;

      f.  waiving his right to a pretrial investigation under Article 32,
UCMJ; and

      g.  waiving any motion to suppress or motion to dismiss based on the
representations of CID Special Agent R___, who obtained a sworn statement
from the applicant on 25 October 1993.

13.  The brigade commander accepted the applicant’s offer and agreed to
refer the case to a special court-martial.

14.  On 27 May 1994, the charges were referred to a special court-martial.

15.  On 10 June 1994, the applicant voluntarily withdrew from the pretrial
agreement, dated 20 May 1994.

16.  On 13 June 1994, the applicant’s brigade commander withdrew the
charges that were referred to a special court-martial on 27 May 1994.

17.  An investigation into the charges against the applicant was conducted
from  6 through 13 July 1994.  The applicant’s commander testified that
both the applicant and his wife were enrolled in the community counseling
program [after the first incident].  The incident had been investigated by
the FACMT (Family Advocacy Case Management Team).  He stated that he felt
all FACMT meetings were disciplinary hearings and that they had their minds
made up prior to the hearing, and that a commander’s input did not have an
impact on their decisions. The commander stated that he believed the
applicant had a future in the Army.  He had given the applicant an oral
admonition for the first incident; he did not take any disciplinary action
based on the results of the FACMT.

18.  The applicant’s spouse testified that after she arrived at Fort
Campbell (apparently initially on leave), she felt the best way for her to
stay at Fort Campbell was to tell [Army officials] the truth concerning the
October 1993 incident.  The applicant was the one who attacked her, and she
had previously made a false statement [that she did not know who attacked
her].  She stated that the applicant’s company commander wanted to prefer
charges against her.  She stated that she did assault the applicant on two
occasions prior to their marriage, and she even pulled a knife.  She stated
she did not have a knife or threaten the applicant in the October 1993
incident.

19.  On 29 July 1994, trial counsel caused the applicant to be served a
copy of the referral of the charges to a general court-martial.

20.  On 6 October 1994, the applicant requested to be tried before a court-
martial panel that included enlisted members.

21.  On 21 October 1994, the applicant was convicted, contrary to his
pleas, by  a general court-martial convened by the Commander, 1st Infantry
Division, of one specification of assaulting his wife (on or about 25
September 1993).  In       a second specification of assaulting his wife
(on or about 24 October 1993),     the panel president announced a finding
of guilty.  On 21 October 1994, upon      a defense motion, the military
judge entered a finding of not guilty.  On                4 November 1994,
the military judge granted a defense motion for mistrial for    the
purposes of sentencing.

22.  On 8 December 1994, the Government appealed the military judge’s two
rulings to the U. S. Army Court of Criminal Appeals.  The U. S. Army Court
of Criminal Appeals noted that the impeachment of members’ announced
findings is prohibited except under very limited circumstances:

      Findings which are proper on their face may be impeached only when
      extraneous prejudicial information was improperly brought to the
      attention of a member, outside influence was improperly brought to
      bear on any member, or unlawful command influence was brought to bear
      upon any member.

23.  The U. S. Army Court of Criminal Appeals noted that voting
irregularities are not one of the three specific enumerated reasons for
impeaching the members’ findings.  A member may testify only on the
question whether extraneous prejudicial information was improperly brought
to the attention of the members of the court-martial, whether any outside
influence was improperly brought to bear upon any member, or whether there
was unlawful command influence.

24.  The U. S. Army Court of Criminal Appeals noted that even though it
would be their first instinct to correct that problem [of voting
irregularity], as it was the military judge’s reaction once the problem
came to his attention, strong public policy reasons bar the military judge
and the Court in the applicant’s case from entering into the sanctity of
the deliberation room to even discover the voting irregularity.  Even
assuming that the voting irregularity demanded redress, the entry of a
finding of not guilty was not an option available to the military judge.

25.  The U. S. Army Court of Criminal Appeals found that there was no
evidence of outside influence, outside information, or unlawful command
influence.  While the military judge then had the authority to set aside a
finding of guilty based on his evaluation that the evidence was legally
insufficient, he had no authority to enter a finding of not guilty.  As to
the military judge’s declaration of a mistrial for sentencing, the court
found nothing in the record that indicated the members could not fairly
adjudge a sentence in the case.  However, the military judge’s declaration
was conditionally set aside and the record returned to him with authority,
if counsel desired, to revisit his decision regarding a mistrial.  On
 17 February 1995, the U. S. Army Court of Criminal appeals granted the
Government’s appeal vacating the military judge’s two rulings.

26.  On 22 September 1995, the U. S. Court of Appeals for the Armed Forces
affirmed the 17 February 1995 decision of the U. S. Army Court of Criminal
Appeals.

27.  On 4 October 1995, the court-martial reconvened without members and
addressed the issue of locating the original panel.  On 7 December 1995,
the court-martial reconvened for sentencing with all seven original panel
members.  On 7 December 1995, sentence was adjudged, and the applicant was
to forfeit $400.00 pay per month for 1 year and to be reduced to SGT, E-5.


28.  On 24 January 1996, the applicant requested early retirement to be
effective 1 March 1996.  He listed his rank as SFC on the DA Form 4187
(Personnel Action) requesting retirement.  Although his company commander
recommended disapproval on the DA Form 4187, on 30 January 1996 PERSCOM
conditionally approved his retirement on 1 March 1996.  Orders were issued
on 6 February 1996 releasing the applicant from active duty, in the rank of
SFC, E-7, and placing him on the retired list in the rank and grade of SGT,
E-5 effective 1 March 1996.  He would have completed 15 years, 3 months,
and 19 days of creditable active service at that time.

29.  On 21 February 1996, PERSCOM revoked the applicant’s previously
approved voluntary early retirement because he did not meet the FY96 Early
Retirement Program eligibility requirements since he was not a promotable
SGT. Orders were issued on 22 February 1996 revoking his 6 February 1996
retirement orders.

30.  On 23 May 1996, the convening authority approved the applicant’s
sentence and ordered it to be executed.

31.  On 14 June 1996, the applicant was honorably discharged upon the
completion of his required active service (after being extended at the
request of and for the convenience of the Government) in the rank of SGT, E-
5.  He had completed 15 years, 7 months, and 3 days of creditable active
service.

32.  On 21 November 1996, the appellate examination of the applicant’s
general court-martial found that the record of his trial contained
sufficient legal and competent evidence to support the approved findings of
guilty and the sentence beyond a reasonable doubt.

33.  Section 4403 of the National Defense Authorization Act (NDAA) for
Fiscal Year 1993 (FY 93) provided the Secretary of Defense a temporary
additional force management tool with which to effect the drawdown of
military forces.  During the initial active force drawdown period (23
October 1992 and ending on  1 October 1999), the Secretary of the Army
could authorize an enlisted member with at least 15 but less than 20 years
of creditable service a length of service retirement.

34.  The July 1995 message implementing the FY96 Regular Army Enlisted
Early Retirement Program did not list eligible MOSs; PERSCOM determined
which applications would be approved based upon force structure and the
best interest of the Army.  It was only offered to Soldiers who met the
strict eligibility requirements outlined in this message.  Commanders were
to ensure that applicants met the eligibility criteria prior to forwarding
their applications to the Headquarters, Department of the Army approval
authority.  In FY96, the Enlisted Early Retirement Program was open to only
three categories of personnel:  (1) Soldiers with a bar to reenlistment or
who signed a declination of continued service statement and had completed
more than 18 years of active Federal Service; (2) promotable SGTs who were
allowed to reenlist for more than          15 years and 29 days prior to 1
October 1993; and (3) promotable SGTs, regardless of military occupational
specialty, with a basic active service date on or before 30 September 1978.

35.  The Manual for Courts-Martial United States, Part II (Rules for Courts-
Martial), Rule 104 (Unlawful command influence), paragraph (a)(1) states no
convening authority or commander may censure, reprimand, or admonish a
court-martial or other military tribunal or any member, military judge, or
counsel thereof, with respect to the findings or sentence adjudged by the
court-martial or tribunal, or with respect to any other exercise of the
functions of the court-martial or tribunal or such persons in the conduct
of the proceedings; and paragraph (a)(2) states no person subject to the
code may attempt to coerce or, by any unauthorized means, influence the
action of a court-martial or any other military tribunal or any member
thereof, in reaching the findings or sentence in any case or the action of
any convening, approving, or reviewing authority with respect to such
authority’s judicial acts.

36.  The Manual for Courts-Martial United States, Part II, Rule 306
(Initial disposition), paragraphs (b) and (c) state allegations of offenses
should be disposed of in a timely manner at the lowest appropriate level of
disposition within the limits of the commander’s authority.  In deciding
how an offense should be disposed of, factors the commander should consider
include the nature of and circumstances surrounding the offense and the
extent of the harm caused by the offense and the appropriateness of the
authorized punishment to the particular accused or offense.

37.  The Manual for Courts-Martial United States, Part II, Rule 401
(Forwarding and disposition of charges in general) states only persons
authorized to convene courts-martial or to administer nonjudicial
punishment under Article 15 may dispose of charges.  A superior competent
authority may withhold the authority of a subordinate to dispose of charges
in individual cases, types of cases, or generally.

38.  The Manual for Courts-Martial United States, Part II, Rule 504,
paragraph (b)(1) states that, unless otherwise limited by superior
competent authority, general courts-martial may be convened by persons
occupying the position designated in Article 22(a) (to include the
commander of a division) and by any commander designated by the Secretary
concerned or empowered by the President.

39.  The Manual for Courts-Martial United States, Part V (Nonjudicial
Punishment Procedure), paragraph 1(d)(2) states, in part, that a commander
who is considering a case for disposition under Article 15 will exercise
personal discretion in evaluating each case, both as to whether nonjudicial
punishment is appropriate and, if so, as to the nature and amount of
punishment appropriate.  No superior may direct that a subordinate
authority impose nonjudicial punishment in a particular case.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contended that there is no evidence that the charges against
the applicant that were referred to the special court-martial were ever
formally withdrawn in order to allow the referral to the general court-
martial.

2.  To the contrary, the evidence shows that after the brigade commander
accepted the applicant’s offer to plead guilty and agreed to refer the case
to a special court-martial (which he did on 27 May 1994), the applicant
voluntarily withdrew (on 10 June 1994) from the pretrial agreement that led
to the referral    to a special court-martial.  The brigade commander
thereupon withdrew (on       13 June 1994) the charges that were referred
to a special court-martial and, after the Article 32 investigation (that
concluded on 13 July 1994), trial counsel caused the applicant to be served
(on 29 July 1994) a copy of the referral of the charges to a general court-
martial.

3.  Since the failure to serve upon the applicant the referral of the
charges to a general court-martial was not raised by defense counsel in an
appeal, it is presumed that there was no question at the time that the
charges had been properly served upon the applicant.

4.  Counsel contended that the decision to impose, or not to impose,
disciplinary and/or administrative action against any member of a command
belongs to the commanding officer – and no one else.  He contended that
each commander has discretion to dispose of offenses by members of that
command, and a superior commander may not limit the discretion of a
subordinate commander to act on cases over which authority has not been
withheld.

5.  Counsel’s contentions are indeed found in the Manual for Courts-Martial
United States.  However, they are located in Part V (Nonjudicial Punishment
Procedure).

6.  While Part II (Rules for Courts-Martial) of the Manual also states that
allegations of offenses should be disposed of in a timely manner at the
lowest appropriate level of disposition within the limits of the
commander’s authority, it also states that a superior competent authority
may withhold the authority of a subordinate to dispose of charges in
individual cases, types of cases, or generally.

7.  Part II of the Manual for Courts-Martial United States also states that
in deciding how an offense should be disposed of, factors the commander
should consider include the nature of and circumstances surrounding the
offense and the extent of the harm caused by the offense and the
appropriateness of the authorized punishment to the particular accused or
offense.

8.  The applicant had assaulted his wife twice in about 30 days.  In the
second assault he stabbed her, putting her in the hospital for nine days.
Neither nonjudicial punishment nor a summary court-martial would appear to
be an appropriate punishment for putting his wife, another Soldier, into
the hospital for nine days.  No matter what the applicant’s company
commander may have believed or wanted, it appears that an authority higher
than the brigade commander (most likely the division commander) believed
that a general court-martial was warranted by the offense(s).  Referral of
the charges to a general court-martial was within the authority of that
higher commander.  There is no evidence that any commander below the
general court-martial convening authority was improperly influenced to
forward charges with a recommendation for a general court-martial.

9.  The military judge’s rulings were overturned by higher courts, and the
applicant’s sentence to forfeit $400.00 pay per month for 1 year and to be
reduced to Sergeant, E-5 was approved.

10.  Counsel contended that the applicant was encouraged to request early
retirement upon completion of his court-martial proceedings and the
execution of his sentence and that he was led to believe his request would
be approved.  Counsel noted that PERSCOM did approve the applicant’s
request, and the approval was not revoked until it was realized the
applicant needed to be held past his ETS.

11.  However, it does not appear that it was the timing of the applicant’s
ETS that triggered the revocation of his retirement orders.  The applicant
simply was not eligible for early retirement under the eligibility criteria
of the FY96 Regular Army Enlisted Early Retirement Program.  That year the
program was open to only three categories of personnel.  One category
pertained to certain Soldiers with more than 18 years of active Federal
Service, and two categories pertained only to promotable SGTs.

12.  The applicant has suffered no significant harm solely by being denied
retirement under the FY96 Regular Army Enlisted Early Retirement Program.
The eligibility criteria were available for all military members to review.
 Given the limited eligibility criteria in that year’s program, he had no
reasonable expectation of his request for retirement being approved
especially in light of the fact that his company commander recommended
disapproval of the request.

13.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 June 1996; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         13 June 1999.  The applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __wb____  __dll___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070004308                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070816                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |136.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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