IN THE CASE OF:	  

		BOARD DATE:	        24 JULY 2008

		DOCKET NUMBER:  AR20080007013 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be issued a report of separation   (DD Form 214) to reflect his service beginning in 1972.  

2.  The applicant states, in effect, that he enlisted in 1972 and was placed on indefinite excess leave awaiting the appellate review of his special court-martial.  However, he never received the results of the appellate review or his discharge papers. 

3.  The applicant provides no additional documents with his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in Montgomery, Alabama on 5 October 1972 for a period of 4 years, a cash enlistment bonus, and assignment to Hawaii.  He completed his basic combat training at Fort Knox, Kentucky and his advanced individual training (AIT) as a light weapons infantryman at Fort Jackson, South Carolina before being transferred to Hawaii on 19 March 1973. 

2.  On 27 February 1974, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from a superior commissioned officer.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay. 


3.  On 16 March 1976, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer to report for guard duty.  His punishment consisted of a forfeiture of pay, extra duty, and a reduction to the pay grade of E-2.   

4.  On 27 October 1976, he was convicted by a Special court-martial of three specifications of disobeying a lawful order from a superior commissioned officer, of willfully damaging military property, of three specifications of behaving with disrespect towards a superior commissioned officer, and of one specification of behaving with disrespect towards a superior noncommissioned officer.  He was sentenced to confinement at hard labor for 3 months, a forfeiture of $200.00 pay per month for 3 months, and a Bad Conduct Discharge (BCD).

5.  However, the convening authority approved only so much of the sentence as provided for a BCD, confinement at hard labor for 2 months, and a forfeiture of $200.00 pay for two months.  The service of the sentence to confinement at hard labor for 3 months was deferred on 11 November 1976 and the deferment is rescinded, but the execution of that portion of the sentence adjudging confinement at hard labor is suspended until completion of appellate review, at which time, unless the suspension is sooner vacated, the suspended portion of the sentence shall be remitted without further action.  The application of forfeiture is deferred until completion of appellate review.

6.  On 19 November 1976, the applicant departed on indefinite excess leave without pay, pending the appellate review of his case.

7.  Meanwhile, on 26 July 1977, the applicant again enlisted in the Regular Army in Montgomery, Alabama for a period of 3 years and training as a unit supply specialist.  At the time of his enlistment he indicated that he had never served in the Armed Forces.  He was transferred to Fort Jackson, South Carolina to undergo his basic combat training (BCT).

8.  On 3 August 1977, NJP was imposed against him for being disrespectful in language towards a superior noncommissioned officer.  His punishment consisted of a forfeiture of pay and 7 days in the correctional custody facility.

9.  On 28 August 1977, NJP was imposed against him for disobeying a lawful order from a superior commissioned officer to go to the mess hall for duty.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.



10.  On 1 September 1977, while still in BCT, he was released from military control by reason of a voided enlistment due to fraudulent enlistment under the provisions of Army Regulation 635-200, chapter 14.  He had served 1 month and 6 days which was voided and not creditable for promotion or longevity.  He was issued a DD Form 214 with no service credit.

11.  On 17 May 1978, orders were published in Hawaii which transferred the applicant to the Personnel Control Facility at Fort Bragg, North Carolina effective 18 May 1978.

12.  On 25 June 1979, orders were published by Headquarters, Department of the Army indicating that the appellate review had been completed and affirmed and directed that the unexecuted portion of the sentence (BCD) be executed.

13.  A review of the available records shows no indication that discharge orders or a DD Form 214 was ever issued to the applicant.  In fact, there are numerous documents which suggest that it was never accomplished. 

14.  Army Regulation 635-200, in effect at the time, provides in paragraph 11-2, that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.  A member placed on excess leave without pay pending completion of appellate review may be discharged without returning to a military installation when the sentence is affirmed.  The appropriate discharge documents will be completed and mailed by Certified mail, return receipt requested, to the address furnished by the member.  The return address will be shown as Commander, US Army Reserve Components Personnel and Administration Center, 9700 Page Boulevard, St. Louis, Missouri 63132.  If the documents are returned unclaimed or undeliverable, they will be placed in the Official Military Personnel File (OMPF).

15.  Army Regulation 600-8-105 prescribes the policies and procedures for the publishing and distribution of military orders.  It provides, in pertinent part that format 500 will be prepared for enlisted or officer transfers and discharges.

16.  Army Regulation 635-5-1 lists the specific authorities and reasons for separation of members from active military service and provides the Separation Program Designators (Separation Codes) that will be used for a specific separation.  It provides that the Separation Code of “JJD” will be used to denote separation under the provisions of Army Regulation 635-200, chapter 11, as a result of court-martial.      

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were affirmed in accordance with applicable laws and regulations, and the discharge directed appropriately characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.
    
3.  However, there is no evidence in the available records to show that the applicant’s discharge was ever actually accomplished or that his discharge orders and DD Form 214 were ever published. 

4.  Accordingly, it would be in the interest of justice at this time to publish discharge orders and issuing the applicant a DD Form 214 to reflect his BCD effective 25 June 1979 and to reflect that he entered active duty on 5 October 1972, was on excess leave from 19 November 1976 until he was discharged under the provisions of Army Regulation 635-200, chapter 11, on 25 June 1979, the date orders were published directing that his BCD be duly executed. 

BOARD VOTE:

__XXX __  __XXX__  __XXX__   GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by publishing discharge orders and issuing the applicant a DD Form 214 to reflect his BCD effective 25 June 1979 and to reflect that he entered active duty on
5 October 1972, was on excess leave from 19 November 1976 until he was 


discharged under the provisions of Army Regulation 635-200, chapter 11, on 25 June 1979, the date orders were published directing that his BCD be duly executed.


 
      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080007013



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ABCMR Record of Proceedings (cont)                                         AR20080007013



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