IN THE CASE OF:	  

		BOARD DATE:	        05 FEBRUARY 2009

		DOCKET NUMBER:  AR20080009580 


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:

The applicant differs to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's reentry eligibility (RE) code be changed to RE-1, that his narrative reason for separation currently reflected on the applicant's Certificate of Release or Discharge from Active Duty (DD Form 214) be changed to show that he reached his expiration term of service (ETS), and that the results of the applicant's administrative elimination board be set aside.

2.  Counsel states that following an exemplary military career, which included numerous deployments, great sacrifice, and over 20 years of service, the applicant was notified of his commander's intent to separate him from the Army for a civilian conviction for child abuse.  Counsel states that the applicant's retirement was delayed as he reached the ETS on 24 July 1998.  Counsel states that the basis for the proposed separation was the applicant's plea of guilty to felony child abuse and indecent liberties with a child in Cumberland County Superior Court.  Counsel states that the applicant received a suspended prison sentence in exchange for his plea of guilty, and that although his chain of command and the Staff Judge Advocate knew of the allegations for over 2 years, and while the court date was in early June, the Army did not act on his separation until the week before he was set to retire.

3.  Counsel states that on 14 July 1998, the applicant was notified to appear before a board of officers to determine if he should be separated from the Army; that contrary to Army Regulation 635-200 (Personnel Separations), 
paragraph 2-10, he was given 2 days notice of the board hearing; that the appointing authority stated that the lack of adequate notice was due to overriding concerns; and that neither the appointing authority nor the board president ever stated the nature of these concerns.  Counsel states that as a result of the lack of time given to prepare and as a result of other cases being handled by his attorneys, the applicant was denied effective assistance of counsel and his lawyer admitted that he was not adequately prepared to represent the applicant.  Counsel states that at the hearing the government put on a few witnesses who testified that the applicant pled guilty to child abuse and that his approved retirement was revoked.  Counsel states that the victim did not testify and that the victim's mother stated that she wanted her family to reconcile, and that she needed her husband's retirement to survive.  Counsel states that the entire hearing lasted for a couple of hours and the board members deliberated for 40 minutes before recommending that the applicant be discharged under other than honorable conditions, which was a rush job with a predetermined conclusion.

4.  Counsel states that at the conclusion of the hearing the applicant's counsel provided a detailed list of errors in the processing of the board.  Counsel states that the list included the fact that the lawyer was not prepared to adequately represent the applicant and, as such, he was denied adequate representation at the board hearing.  Counsel goes on to provide a list of the things that the applicant's lawyer would have done had he been provided adequate time to prepare for the applicant's board hearing and why his lawyer needed additional time to prepare.  Counsel states that Army Regulation 635-200 provides that Soldiers be afforded 15 days from the date of notification of a board to the date of the hearing, absent "overriding circumstances" and the applicant was provided only 36 hours of notice.  Counsel states that the delay was of the government's own making, that the applicant's court date was 5 June 1998, that the applicant's retirement date was not until 1 July 1998, and that the government sat on the applicant's case and then averred "overriding circumstances" in pushing it forward to a hearing prior to his pending ETS date.  Counsel states that the applicant was discharged 2 days prior to his retirement date with a discharge under other than honorable conditions.

5.  Counsel concludes by stating that noting the inequitable nature of the applicant's discharge, the Army Discharge Review Board (ADRB) voted to upgrade the characterization of his service to honorable; however, his narrative reason for discharge and his RE code were not changed.  Counsel states that at his ADRB hearing the applicant testified that the reason for his guilty plea was because he was assured by his counsel that his retirement was secure.  Counsel contends that the Judge Advocate General's Office was aware of the circumstances of the applicant's case months before that office moved to administratively separate him from the Army and had they acted sooner, there would have been no need to rush this case through.  Counsel states that the applicant's case was fraught with procedural errors and that the government failed to comply with its own regulations.  Counsel contends that the only appropriate remedy would be to void the result of the administrative board and to reinstate the applicant to active duty or, in the alternative, to change his RE code to RE-1 and his narrative reason for separation to show that he served until his ETS.

6.  Counsel provides on behalf of the applicant, a copy of the ADRB Case Report and Directive and a copy of the summarized proceedings in the administrative board dated 21 July 1998.

CONSIDERATION OF EVIDENCE:

1.  On 21 June 1978, the applicant enlisted in the Regular Army in Charlotte, North Carolina, for 4 years in the pay grade of E-1.  He successfully completed his training as a light wheel vehicle mechanic.  He remained on active duty through a series of reenlistments and he was promoted through the ranks to the pay grade of E-6.  He last reenlisted on 25 October 1990 for 6 years and on 24 July 1996 he extended his enlistment for 21 months, making his ETS 24 July 1998.

2.  On 1 April 1996, the applicant was arrested by civil authorities for the crime of "indecent liberties with a minor" (his 11-year old stepdaughter.)  On 10 May 1996, after a thorough investigation was conducted, the Chairperson, Case Review Committee, Womack Army Medical Center, determined that the allegation was substantiated.

3.  An investigation was conducted by the 87th Military Police Detachment, Criminal Investigation Command (CID), Fort Bragg, North Carolina.  According to the special agent, the incident was reported to the CID on 19 December 1996 by the Cumberland County Sheriff's Office, Fayetteville, North Carolina.  The investigation established probable cause to believe that the applicant committed the offenses of indecent liberties with a child, first degree statutory rape, and felony child abuse.  The applicant's commanding officer (CO) was briefed on the status of the investigation on 7 January 1997.

4.  At the request of his CO, the applicant's records were flagged effective 4 February 1997 due to adverse action.

5.  The available records indicate that a bar to reenlistment was initiated against the applicant on 9 July 1997, that he submitted a request for retirement on 21 July 1997, and that the bar to reenlistment was approved on 15 September 
1997.  The applicant's CO recommended disapproval of his request for retirement on 2 October 1997.

6.  On 1 November 1997, the applicant's CO was advised not to process the applicant's request for retirement since it would not be approved by Personnel Services.  On or about 18 March 1998, while his CO was on leave, the applicant's request for retirement was processed through the brigade to Personnel Services and it was approved.

7.  On 26 March 1998, Orders 085-0316 were published releasing the applicant from active duty effective 30 June 1998 and placing him on the Retired List effective 1 July 1998.

8.  On 5 June 1998, the applicant, as part of a plea arrangement, pleaded guilty to indecent liberties with a child and to felony child abuse.  He agreed to a suspended sentence of 60 months with supervised probation.  The condition of his probation included electronic house arrest for 6 months (during which he was not to have any contact with the victim or his family) and child sex offender conditions of probation as set out in the statute.  His probation was to last for a period of 5 years.

9.  On 26 June 1998, the applicant's CO was notified by the Chief, Retirements and Separation Branch, that his approved retirement was suspended and that the retirement orders would be revoked or rescinded as appropriate.  The notification states that the approved retirement would remain in effect and that upon completion of an investigation the applicant would be retired on the first day of the month following the month that charges are dismissed.

10.  On 29 June 1998, the applicant was notified that action to eliminate him from the Army under the provisions of Army Regulation 635-200, chapter 14, had been initiated.  The applicant's CO cited his conviction by civil authorities for indecent liberties with a child and felony child abuse as a basis for his recommendation.  The applicant was advised of his right to a hearing before an administrative board and of his right to consult with counsel.  He was told that any statements that he desired to submit in his own behalf must be submitted within 7 duty days after he received his notification, unless an extension was granted.

11.  The applicant acknowledged receipt of the notification of intent to initiate action to eliminate him from the Army on 7 July 1998.  The available records indicate that on 10 July 1998 he made an election to appear before an administrative separation board and he retained civilian counsel on 15 July 1998 to represent him in his administrative discharge proceedings.

12.  On 14 July 1998, the commanding general (CG) notified the appropriate authorities that he had reviewed the applicant's proposed discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, due to the commission of a serious offense and he directed that the case be referred to the XVIII Airborne Corps Standing Administrative Separation Board.  The CG further directed that the applicant's case take priority over all other duties of those currently on the Standing Administrative Separation Separation Board.  The CG directed that due to overriding circumstances, per Army Regulation 635-200, paragraph 2-10, the 15-day waiting period would be modified to be no more than a 2-day waiting period and that the board would convene as rapidly as possible.  The CG stated that the applicant would be provided a copy of his notification.

13.  On 15 July 1998, the applicant was notified to appear before a board of officers on 17 July 1998 to determine whether he should be discharged due to his conviction by civil court before his ETS.  He was informed that if he failed to appear before the board due to being absent without leave, he may be discharged from or retained in the service by the separation authority without a personal appearance before the board.

14.  In a memorandum dated 15 July 1998, the applicant's counsel (Judge Advocate Senior Defense Counsel) notified his CO that he was in receipt of the notification to the applicant regarding the proposed administrative elimination action.  Counsel stated that the notification asserted that due to "overriding circumstances," per Army Regulation 635-200, paragraph 2-10, the 15-day waiting period would be modified to be no more than a 2-day waiting period.  Counsel stated that Army Regulation 635-200, paragraph 2-10a, provides that a Soldier under military control will be notified in writing of the convening date of the board at least 15 days before the hearing to allow the Soldier and the appointed counsel time to prepare the case.  Counsel further stated that Army Regulation 635-200, paragraph 2-10a, further provides that when, for overriding reasons, the minimum of 15 days cannot be granted, the president of the board will insure that the reason for acting before that time is fully explained.  Counsel stated that his client had not been notified of any overriding circumstances, thus he would be unable to challenge such assertion before the president of the board if such reason is considered inadequate.

15.  In the memorandum, counsel requested that the applicant's CO state with specificity the overriding circumstances that existed to convene a board against a Soldier who had 19 years, 11 months, and 21 days of service.  He stated that giving the applicant only 2 days notice was unreasonable given the following facts:  the seriousness of the allegations; the command had been aware of the allegations and had supporting documents regarding the allegations since April 1996; the applicant's conviction pursuant to a plea (resulting in probation) occurred on 5 June 1998; the command took 6 weeks to notify the applicant of its actions; his office was currently short two attorneys and the others were currently working on court-martial cases; the board may attempt to deny his client his retirement benefits; the mitigating circumstances associated with the civil conviction; the facts and evidence which needed to be gathered; and the impact an adverse board ruling would have on the long-term financial well being of the applicant.  In the memorandum, counsel went on to explain why a 2-day notice of board proceedings was improper and why he would be unable to meet the proposed hearing date.

16.  On 17 July 1998, a board of officers convened to determine whether the applicant should be discharged from the Army due to his conviction by a civil court.  The applicant was represented by his military-appointed and his civilian attorneys.  The board found that he had been convicted by a civilian court of the offenses of indecent liberties with a child and felony child abuse, offenses for which a punitive discharge is authorized under the Uniform Code of Military Justice or for which the applicant was sentenced to more than 6 months of confinement.  The board recommended that the applicant be discharged from the Army due to his conviction by a civilian court and that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

17.  The Judge Advocate, Chief, Administrative Law Division, reviewed the administrative board proceedings on 17 July 1998, and she determined that the proceedings were legally sufficient and that they complied with legal requirements.  She also determined that sufficient evidence supported the findings of the board and that the recommendations were consistent with the findings.  The Judge Advocate, Chief, Administrative Law Division, stated that the respondent objected to the fact that the board was convened 2 days following the notification to appear before a board.  She stated that the record of proceedings contains a full explanation of the reason why the proceedings were conducted prior to the 15-day minimum, and that when the board president determines that overriding reasons make it necessary to deny the respondent 15 days of notice of a board, the decision of the president is subject to overrule by the convening authority.  The Judge Advocate, Chief, Administrative Law Division, stated that when the board was convened, the determination was made that overriding reasons necessitated denial of the 15-day notice of the board.  The Judge Advocate, Chief, Administrative Law Division, noted that in correspondence and during the proceedings the applicant's counsel objected to the determination.

18.  The applicant's counsel acknowledged receipt of the notification on 20 July 1998 and he indicated that he did not have time to review the applicant's packet.  Counsel stated that he was only acknowledging receipt of the notification and that he needed more time to read the packet and to file any objections.

19.  On 24 July 1998, the applicant's CO was notified that the Assistant Secretary of the Army for Manpower and Reserve Affairs carefully considered and approved the recommendation to discharge the applicant from the Army under the provision of Army Regulation 635-200, chapter 14, paragraph 14-5.  The Assistant Secretary of the Army for Manpower and Reserve Affairs directed the issuance of a discharge under other than honorable conditions, a JKB separation program designator, an RE-4 code, and a reduction to the lowest enlisted grade in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions).

20.  Accordingly, on 24 July 1998, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14-5a, for misconduct based on his conviction by civil authorities.  He was reduced to the pay grade of E-1, furnished an RE-4 code, and assigned a JKB separation program designator.  He had completed 20 years, 1 month, and 4 days of net active service.

21.  On 27 September 2006, the applicant petitioned the ADRB for an upgrade of his discharge.  On 2 July 2007, the ADRB voted to grant relief in the form of upgrading the characterization of his service to general under honorable conditions and restoring him to the rank and pay grade of staff sergeant (E-6).  The ADRB determined the the characterization of the applicant's service was too harsh, and as a result is now inequitable.  The ADRB further determined that the overall length and quality of the applicant's service and his post-service accomplishments mitigate the discrediting entries in his service record.  The ADRB determined that the reason for discharge was both proper and equitable; therefore, his narrative reason for separation was not changed.

22.  Army Regulation 635-200 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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

23.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including Regular Army RE codes.  The Separation Program Designator (SPD)/RE Code Cross Reference Table provides that when an individual is discharged for any reason with 18 or more years of service, the individual will be assigned an RE-4 code.  An RE code of 4 applies to persons with a non-waivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  Counsel requests that the applicant's RE code should be changed from RE-4 to RE-1, that his narrative reason for separation should be changed to reflect that he reached his ETS, and that the results of the administrative elimination board be set aside.

2.  Counsel's contentions have been noted.  However, the applicant was assigned an RE code at the time of his discharge which is in accordance with the applicable regulation.  There is no evidence in the available record that shows that the RE code that was assigned to him his erroneous or unjust.

3.  The applicant's records show that a board of officers convened and recommended that he be discharged due to misconduct as a result of his conviction by civil authorities.  While he may have reached his ETS, reaching his ETS was not the reason for his separation.  He was discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct and his DD Form 214 properly reflects this information.  Neither the applicant nor his counsel has provided any evidence to show that the narrative reason for separation that is currently reflected on his DD Form 214 is incorrect.  Therefore, there is no basis for granting this portion of counsel's request.

4.  Counsel's contention that the applicant pleaded guilty in civil court in exchange for a suspended prison sentence and that he was told that his guilty plea would not interfere with his retirement has also been noted.  However, the available records show that he plead guilty to indecent liberties with a child and to felony child abuse.  He agreed to a suspended sentence of 60 months with supervised probation.  The condition of his probation included electronic house arrest for 6 months (during which he was not to have any contact with the victim or his family) and child sex offender conditions of probation as set out in the statute.  His probation was to last for a period of 5 years.  Nowhere does it indicate in the plea agreement that his conviction would not affect his retirement benefits, nor did any attorneys have the authority to offer such an agreement.

5.  Counsel's contentions regarding the limited time that the applicant's former counsel was afforded to prepare for the board has been considered.  However, the evidence of record shows that the board proceedings were conducted in accordance with the applicable regulation.  Counsel's objections to the limited time that he was provided to prepare for the case and the reasons for the "overriding circumstances" were considered and addressed in the board proceedings.  Counsel has provided no evidence to show that the administrative board proceedings were conducted in error or are unjust.  Therefore, there is no basis to set aside or void the board proceedings or to reinstate the applicant on active duty.

6.  The decision made by the ADRB in this case to upgrade the characterization of the applicant's service has been considered.  However, it is an insufficient justification for changing the applicant's narrative reason for separation, for changing his RE code, and/or to set aside or to void the results of the administrative separation board.

7.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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.



      __________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)                                         AR20080009580



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ABCMR Record of Proceedings (cont)                                         AR20080009580



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