IN THE CASE OF:	  YOUNG, CYRUS 

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080007383 


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 that his discharge be changed to a retirement and that he be awarded retired benefits and pay.

2.  The applicant states, in effect, that he was previously approved to retire on 
31 July 2001.  He feels that he is being discriminated against because many officers received bad conduct discharges but returned to their unit to retire after doing 2 to 4 years in prison.  To take his retirement benefits and allow selected individuals their retirement benefits after being court-martialed for criminal offenses is discriminatory.  He asks for consideration of his 20 plus years of military service and sacrifices his family endured and grant the fruits of his retirement to support his family and medical needs for being a U.S. Army Soldier for 20 years.

3.  The applicant provides Headquarters, III Corps and Fort Hood Orders 
298-0242, dated 24 October 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 March 1981 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  The applicant was later awarded MOS 63E (M-1 Tank System Mechanic).


2.  The applicant was honorably discharged on 23 February 1984 and immediately reenlisted on 24 February 1984.  He was honorably discharged on 
6 May 1987 and immediately reenlisted on 7 May 1987.  He was honorably discharged on 22 February 1992 and immediately reenlisted on 23 February 1992.  He was honorably discharged on 9 September 1995 and immediately reenlisted on 10 September 1995.

3.  Headquarters, III Corps and Fort Hood Orders 298-0242, dated 24 October 2000, show that the applicant's effective date of retirement would have been
31 July 2001 in the grade of Sergeant First Class (SFC)/E-7.

4.  Headquarters III Corps and Fort Hood Orders 040-0206, dated 9 February 2001, revoked the applicant's retirement orders.

5.  On 12 September 2001, the applicant was convicted, contrary to his pleas, by a general court-martial of, on or about 22 July 2001, attempting to wrongfully distribute approximately one pound of marijuana, conspiring with another to distribute marijuana, and wrongfully possessing approximately 18 pounds of marijuana with intent to distribute.  His sentence consisted of a reduction to the grade of private/pay grade E-1, a forfeiture of all pay and allowances, confinement for ten years, and a Dishonorable Discharge.

6.  On 7 March 2006, the U.S. Army Court of Criminal Appeals (USACCA) affirmed the approved findings and the sentence.

7.  On 21 March 2007, the U.S. Court of Appeals for the Armed Forces (CAAF) affirmed the USACCA decision.

8.  On 20 June 2007, the applicant was discharged with a dishonorable discharge pursuant to his court-martial sentence.  He completed a total of 
20 years, 1 month, and 25 days of creditable active service with 2,081 days of lost time due to confinement.

9.  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 active Federal service (AFS) retirement may, upon his request, be retired.

10.  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.  

11.  While the provisions of Title 10, U. S. Code, section 3914 and Army Regulation 635-200 allow the Secretary of the Army to grant an enlisted Soldier's request for a retirement, they do not eliminate the Army's jurisdiction to prosecute a Soldier with more than 20 years of service.  A punitive discharge adjudicated at a court-martial and executed by a convening authority eliminates a Soldier's eligibility for retired pay.  This is true for both officers and enlisted Soldiers.

DISCUSSION AND CONCLUSIONS:

1.  On 31 July 2001, the applicant was to retire from the Army after serving over 20 years of service.  However, his retirement orders were revoked prior to his court-martial, sentence, confinement, and discharge.  

2.  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, when he was an experienced Soldier with many years of service and should have known what the consequences of such misconduct could be, was a valid reason to deny retirement and is still a valid reason not to correct his records to show he earned a retirement.  In addition, he committed the misconduct before he completed 20 years of service.

3.  The applicant's entire record of service and age factor were considered in this case.  However, given the seriousness of the offenses for which he was convicted, it is determined that these factors are not sufficiently meritorious or mitigating to warrant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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.



      _________xxxx_________
               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)                                         AR20080007383



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ABCMR Record of Proceedings (cont)                                         AR20080007383



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