IN THE CASE OF:	  

		BOARD DATE:	       13 August 2008

		DOCKET NUMBER:  AR20080007356 


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 restored to an active duty status, promoted to pay grade E-7, and allowed to serve until retirement.

2.  The applicant states, in effect, that he was illegally separated which deprived him of promotion to pay grade E-7, and a chance to serve until retirement.  He was a career Soldier who intended to make the Army a lifetime commitment.  This case represents flagrant violation of several regulations by a major general who should have and probably did know better.  He was tortured for 7 years.  Every available means of relief is warranted.  The Army Discharge Review Board (ADRB) panel explained that he should push for all possible relief.  The general discharge recommended by the administrative separation board (ASB) would have allowed him to reenlist and to serve until retirement.  

3.  The applicant provides copies of his original DD Form 214 (Certificate of Discharge or Release from Active Duty); the DD Form 214 resulting from the ADRB decision; and a memorandum, dated 15 June 2001, from the Staff Judge Advocate. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, promotion to pay grade E-7.  [Counsel also mentions employment by the Department of Veterans Affairs (VA) over which the Board has no jurisdiction].   

2.  Counsel states, in a copy of what was apparently his opening remarks to the ADRB, that, the applicant was a respected career Soldier with over 17 years of devotion to duty.  He was an excellent Soldier who had bad luck.  His father died, his brother died, and he went through a messy divorce.  His world crumbled and he made some bad decisions.  As a result he was absent without leave (AWOL on three occasions, for 11 days, 47 days, and 5 days.  These should not be characterized as a pattern of misconduct.  The applicant was in the psychiatric ward of the Brooklyn VA for 6 months and was incarcerated in Kentucky for 
6 months.  Many mistakes were made by both sides.  

3.  Counsel further contends that, although the ASB's rational for a finding of misconduct was weak the recommendation on characterization was right.  Counsel agrees with the SJA, the applicant, "should have been discharged with a General Discharge Under Honorable Conditions with NO loss of rank and a favorable Re-1 reenlistment code, erasing Misconduct and derogatory Sep Code {JKD} {AWOL/DESERTION}."  Counsel cited provisions from the governing Army and Department of Defense regulations pertaining to characterization of the discharge.  Counsel described the applicant's life since discharge as follows: he lived in the VA Homeless Veterans Shelter and worked for the VA as a nurses aide and did volunteer work; he now works for a railroad and has remarried; his child support payments are up to date all of this despite physical and mental problems that were diagnosed while on active duty, including bi-polar disorder.    

4.  Counsel provides an extract of chapter 2 (Procedures for Separation) of the 
6 June 2005 version of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

CONSIDERATION OF EVIDENCE:

1.  On 12 September 1999, the applicant (an Army Reserve staff sergeant) reentered the Active Guard/Reserve program in an active duty status.  He had completed 4 years, 7 months and 19 days of prior active service and 10 years, 10 months and 9 days of prior inactive service. 

2.  He was AWOL from 15 to 26 October 1999 and his record was flagged.  The applicant was AWOL again on 2 November 1999 and returned to duty on 
20 December 1999.  He was then AWOL from 17 to 24 February 2000.   

3.  On 3 March 2001 the applicant appeared, with counsel, before an ASB convened by Commander, 77th Regional Support Command.  The board found that there was sufficient evidence to conclude that the applicant had been AWOL  

and insufficient evidence to conclude that he had used crack cocaine.  The ASB recommended that he be separated with a general discharge under honorable conditions.   

4.  The Staff Judge Advocate reviewed the case, found it sufficient in law and fact and recommended that the separation authority approve the recommendations. 

5.  On 30 April 2001, the separation authority approved the finding and recommendation of the ASB, but inadvertently directed that the applicant be separated with a under other than honorable conditions discharge and reduced to pay grade E-1.   

6.  On 11 June 2001 the applicant was reduced to pay grade E-1 and separated with an other than honorable conditions discharge.  He had completed 1 year, 
6 months and 23 days of creditable service during this period of active duty.  

7.  The Staff Judge Advocate (SJA) of the Total Army Personnel Command, St. Louis reviewed the case and a 15 June 2001 memorandum, noted that the governing regulation (Army Regulation 635-200) precluded the separation authority from imposing a more harsh discharge than the ASB had recommended.  The SJA recommended that the separation orders to be amended to change the characterization and that the reduction order reducing the applicant to pay grade E-1 be revoked. 

8.  Orders 179-1 Total Army Personnel Command, St. Louis, dated 28 June 2001, revoked the reduction in rank order.  However, there are no other available documents relating to the actions recommended by the SJA.

9.  Army Regulation 635-200 (Personnel Separations), currently in effect, 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 commission of a serious offense.  An offense is serious, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts Martial (MCM). 

10.  The Table of Maximum Punishments of the MCM provides that a punitive discharge is authorized for any AWOL of more than 30 days.

11.  On 22 January 2008 the ADRB reviewed the case and upgraded the discharge to honorable due to Secretarial Authority.  The ADRB panel noted that. "This action entails a change to the reentry code to '1' and a restoration of rank to SSG/E-6." 
DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence that the applicant was qualified or recommended for promotion to pay grade E-7.  Furthermore, his record was flagged and he would not have been eligible to be promoted in any case.   

2.  There is no justification for restoring the applicant to active duty or to an active status.  The applicant, a noncommissioned officer with years of experience was repeatedly AWOL.  This was a serious offense that warranted discharge.  

3.  The separation authority made a mistake by characterizing the discharge more harshly than the ASB had recommended.  However, the SJA's 15 June 2001 memorandum and the 28 June 2001 order that revoked his reduction in rank clearly shows that there was enough information available in the case that almost any inquiry on his part would have resulted in an administrative correction.  The ADBR decision rectified any injustice in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ____X_ _  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.




      _______ _   X_______   ___
               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)                                         AR20080007356



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ABCMR Record of Proceedings (cont)                                         AR20080007356



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