RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 November 2007
	DOCKET NUMBER:  AR20070008991 


	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:


Ms. Barbara J. Ellis

Chairperson

Mr. Jose A. Martinez

Member

Mr. Chester A. Damian

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 records be corrected to show he retired after completing 20 years of active Federal service (AFS) and that he receive back pay for such service.

2.  The applicant states he served honorably for 20 years.  He lost his earned retirement and thereby suffered financial hardship.  The Army Discharge Review Board (ADRB) upgraded his discharge to honorable.

3.  The applicant provides the ADRB decision packet.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be granted a retirement based upon over 20 years of honorable service; that he be granted a Retired military identification card; and that he be awarded back due retired pay.

2.  Counsel states that the ADRB recently upgraded the applicant’s discharge to fully honorable.  As such, he faithfully served his nation, proud and true.  He is most deserving of all retirement benefits due an honorably discharged retiree. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 December 1974.  He was promoted to Staff Sergeant, E-6 in military occupational specialty 45K (Armament Repairer) on 1 July 1985.  He last reenlisted on 13 February 1992.

2.  On or about 11 March 1994, the applicant applied for retirement to be effective 1 January 1995.

3.  On 21 July 1994, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using cocaine on or between 19 April 1994 and 26 April 1994.

4.  On 16 September 1994, the applicant’s commander initiated separation action under the provisions of chapter 14, Army Regulation 635-200 for commission of a serious offense; i.e., his positive urinalysis test for cocaine.  The applicant’s commander recommended he be retained on active duty.  


5.  The applicant’s entire discharge packet is not available.  However, the applicant apparently requested an administrative board hearing.  The administrative board recommended the applicant be discharged with a general discharge.

6.  On 29 November 1994, the applicant received a general officer memorandum of reprimand for refusing to submit to a chemical breath test.  Military police had observed him almost strike a tree while attempting to make a left turn.  Upon making contact with him, a strong odor of an alcoholic beverage was detected emitting from his person.  A field sobriety test was not administered due to his alleged medical condition.  He then refused to submit to a preliminary breath test.

7.  On 30 December 1994, Headquarters, Department of the Army approved a request to withdraw the applicant’s approved retirement. 

8.  On 11 January 1995, Headquarters, Department of the Army approved the recommendation to discharge the applicant for misconduct – commission of a serious offense – and directed he be issued a general, under honorable conditions discharge.

9.  On 12 January 1995, the applicant was discharged, in pay grade E-6, under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  He had completed 20 years and 16 days of creditable active service and had no lost time.  

10.  On 4 June 2007, the ADRB upgraded the applicant’s discharge to fully honorable.  The ADRB noted that while his misconduct was not condoned, his overall length and quality of his service and the time that had elapsed since his discharge mitigated the discrediting entry in his record.  However, the ADRB determined that the reason for his discharge was both proper and equitable.

11.  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.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.


12.  Title 10, U. S. Code, section 3914 states that, under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service for an AFS retirement may, upon his request, be retired.

13.  Army Regulation 635-200, chapter 12, establishes policy and prescribes procedures for retiring enlisted Soldiers for length of service.  It states that a Soldier who has completed 20, but less than 30, years of AFS may, at the discretion of the Secretary of the Army, be retired at his or her request.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant last reenlisted on 13 February 1992.  On or about 11 March 1994, he applied for retirement.

2.  On 21 July 1994, the applicant accepted non-judicial punishment under
Article 15, Uniform Code of Military Justice for wrongfully using cocaine.  On
16 September 1994, separation action on him was initiated.  His retirement approval was withdrawn.  On 29 November 1994, he received a general officer memorandum of reprimand for refusing to submit to a chemical breath test.  

3.  Although the ADRB later upgraded the applicant’s discharge to fully honorable, the ADRB also determined that the reason for his discharge was both proper and equitable.

4.  Retirement for an enlisted Soldier with less than 30 years of AFS is not a right but is at the discretion of the Secretary of the Army.  The applicant’s misconduct, after his retirement had already been approved, was determined to be sufficient to withdraw his retirement.  He provides insufficient evidence to show why that determination should be overturned.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__bje__  __jam___  __cad___  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.




__Barbara J. Ellis____
          CHAIRPERSON




INDEX

CASE ID
AR20070008991
SUFFIX

RECON

DATE BOARDED
20071108
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
136.02
2.

3.

4.

5.

6.