IN THE CASE OF:	  

		BOARD DATE:	        24 July 2008

		DOCKET NUMBER:  AR20080007746 


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, reconsideration of his earlier request to correct his records to show he retired for length of service effective 1 April 2000.

2.  The applicant states that he served honorably for over 19 years and had one event that should not have happened.  He has been out now for over 8 years and thinks that he has more than paid for the stupid mistake he made.  He was        29 days away from his retirement when he was released.  He would like to be placed on the retired list at his highest grade held (Staff Sergeant (SSG), E-6).

3.  The applicant provides a re-issued DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20000036097 on 27 June 2000.

2.  The applicant’s Army Discharge Review Board (ADRB) discharge upgrade is new evidence that will be considered.  


3.  After having had 4 years of prior service in the Regular Army, the applicant enlisted in the Regular Army on 1 March 1984.  He was promoted to SSG, E-6, on 9 July 1987.  He last reenlisted on 2 November 1995. 

4.  In March 1997, the applicant stole a laptop computer and some CPUs (central processing units) from The Citadel’s Air Force Reserve Officers’ Training Corps Department.  A Citadel, Department of Public Safety Incident Report indicates that when the applicant was questioned he admitted to taking one computer about one year previously and two more computers about 2 to 3 months previously.

5.  On 4 March 1998, the applicant was convicted, in accordance with his plea, by the General Sessions Court of the State of South Carolina of grand larceny greater than $5,000.00.  He was sentenced to 5 years confinement, suspended with probation for 2 years.  

6.  On 3 June 1998, the applicant was reduced to Sergeant, E-5, by an administrative reduction board.  

7.  On 23 November 1998, action was initiated to separate the applicant under the provisions of Army Regulation 635-200, chapter 14 for misconduct – civil conviction.  On 22 April 1999, an administrative separation board found that the applicant warranted separation due to his civilian conviction and recommended he be discharged from the Army and issued a General Discharge Certificate.

8.  On 3 December 1999, the U. S. Total Army Personnel Command approved the applicant’s separation and directed he be discharged under honorable conditions and issued a General Discharge Certificate.

9.  On 31 January 2000, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct, after completing a total of 19 years and 11 months of creditable active service.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel for misconduct.  That regulation provides, in pertinent part, for the elimination of enlisted personnel for misconduct when they are initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, if a punitive discharge would be authorized for the same or a 

closely related offense under the Manual for Courts-Martial, or the sentence by civil authorities includes confinement of 6 months or more, without regard to suspension or probation.  

11.  On 7 July 2006, the ADRB determined that the overall length and quality of the applicant’s service mitigated the discrediting entry in his records and voted to change the characterization of his service to fully honorable.  The ADRB determined that the reason for his discharge was both proper and equitable and voted not to change it.

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 active Federal service (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 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 would have completed 20 years of AFS on 1 March 2000.  However, his separation for misconduct was approved by Headquarters, Department of the Army and he was discharged on 31 January 2000, one month short of qualifying for a length of service retirement.

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, would have been and is still a valid reason not to correct his records to show he earned a retirement.  

3.  The applicant contended that he served honorably for over 19 years and had one event that should not have happened.  However, when his larceny was discovered in March 1997 he admitted to taking one computer about one year previously and two more computers about 2 to 3 months previously.  The applicant did not commit one “stupid mistake.”  His misconduct began when he had about 16 years of service, extended over a one year period, and involved at least three “events.”  

4.  The ADRB’s upgrade of the applicant’s discharge to fully honorable does not warrant granting 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 to amend the decision of the ABCMR set forth in Docket Number AR20000036097 dated 27 June 2000.




      _______ _ 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)                                         AR20080007746





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ABCMR Record of Proceedings (cont)                                         AR20080007746



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