RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 January 2008
	DOCKET NUMBER:  AR20070011261 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Donald W. Steenfott

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 correction of his military records to show that he was retired for length of service.

2.  The applicant states that he received an honorable discharge after more than 20 years of service.

3.  The applicant provides a copy of the Army Discharge Review Board (ADRB) Proceedings, dated 11 June 2007.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no statement or evidence.

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.  On 7 September 1971, the applicant enlisted in the Regular Army for 3 years He completed his initial training and was awarded military occupational specialty (MOS) 71B1O (Clerk Typist).  On 6 May 1974 he was reclassified into MOS 11B1O (Light Weapons Infantryman).   

3.   On 4 May 1972, the applicant was promoted to specialist four, pay grade E4.

4.  On 6 February 1974, the applicant was reduced to private, pay grade E1.  There is no evidence of record explaining the reason for or the method of this reduction. 


5.  On 29 August 1974, the applicant was discharged for the purpose of immediate reenlistment.  His characterization of service was honorable.  On 
30 August 1974, he reenlisted for 5 years.  

6.   On 10 March 1975, the applicant was promoted to specialist four, pay grade E4.  He was subsequently promoted to sergeant, pay grade E5 on 9 July 1978, and to staff sergeant, pay grade E6 on 6 June 1983.

7.  On 29 February 1984, the applicant reenlisted for another 6 years in the Regular Army.  On 17 November 1989, the applicant extended this enlistment to a period of 7 years and 8 months for the purpose of attaining 20 years of active federal service, providing an expiration term of service (ETS) of 28 October 1991. 

8.  On 8 March 1989, the applicant was convicted by general court-martial of using marijuana and for twice distributing methamphetamines.  His sentence consisted of reduction to private first class, pay grade E3; and forfeiture of $200.00 pay per month for 6 months. 

9.  On 19 September 1989, the applicant was promoted to specialist four, pay grade E4.

10.  On 12 April 1990, the applicant was arrested by civilian authorities for using marijuana and cocaine.

11. On 28 March 1991, the applicant was convicted by special court-martial of wrongful use of marijuana and cocaine.  His sentence consisted of a bad conduct discharge.

12.  The applicant was placed on excess leave during the period from 10 May 1991 to 22 September 1992 (504 days). 

13.   Special Court-Martial Order Number 6, United States Army Transportation Center and Fort Eustis, Fort Eustis, Virginia, dated 24 July 1992, noted that the sentence to a bad conduct discharge was finally affirmed and directed its execution.

14.  Accordingly, on 24 September 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as the result of court-martial.  His character of service was bad conduct.  He was given a separation code JJD and a reentry code 4.  He had completed 20 years and 18 days of creditable active service, including 504 days of excess leave.

15.  On 8 June 2007, the ADRB determined that the applicant's characterization of service was too harsh at the time, and as a consequence is now inequitable.  The ADRB found that the length and quality of the applicant's service, and the time that has elapsed since his discharge, mitigated the discrediting entry in his service record.  Accordingly, the ADRB granted relief in the form of an upgrade of the characterization of service to fully honorable.   The ADRB noted that a change in the reason for discharge is not authorized under Federal statute.

16.  Army Regulation 635-200, chapter 12 (Retirement for Length of Service) provides that a Soldier of the Regular Army who has completed 20, but less than 30 years of active federal service in the United States Armed Forces may, at the discretion of the Secretary of the Army, be retired at his or her request.  The Soldier must have completed all required service obligations at the time of retirement.  Upon retirement, the Soldier is transferred to the United State Army Reserve (USAR) (Retired), and remains in this status until active service before retirement and the period served in the USAR (Retired) equals 30 years. It further provides that the Soldiers of the Regular Army must be on active duty when they retire.  

DISCUSSION AND CONCLUSIONS:

1.  Regular Army Soldiers who complete at least 20 years of active federal service in the Armed Forces of the United States may request to be retired.  However, they must have completed all service obligations and be transferred to the USAR (Retired) until they reach a combined total period of service equal to 30 years.   Furthermore, they must be on active duty when they are retired and transferred the USAR (Retired).

2.  In this case, the applicant did not fulfill his entire service obligation and was no longer on active duty.  He was placed on excess leave and was subsequently discharged. 

3.  While the ADRB found that the characterization of service in this case was inequitable, there is no evidence showing that the Secretary of the Army would have favorably considered a request from the applicant to retire.

4.  The evidence of record clearly shows that the applicant's characterization of service was upgraded from bad conduct to fully honorable.  It also clearly shows that the reason for his discharge was not changed.

5.  In view of the above, the applicant's request should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JLP___  __WDP _  __DWS __  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.





___ William D. Powers ____
          CHAIRPERSON




INDEX

CASE ID
AR20070011261
SUFFIX

RECON
 
DATE BOARDED
20080110 
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19920924
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0200
2.

3.

4.

5.

6.