IN THE CASE OF:
BOARD DATE: 2 April 2009
DOCKET NUMBER: AR20080013226
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 the separation date on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to 18 October 2002 instead of 9 April 2008.
2. The applicant states the current separation date on his DD Form 214 is incorrect.
3. The applicant provides, in support of his application, copies of his DA Form 31 (Request and Authority for Leave), orders returning him to the U.S., his
DD Form 214, and his discharge orders.
CONSIDERATION OF EVIDENCE:
1. The applicant's military personnel records show he enlisted in the Regular Army on 25 May 2000. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).
2. On 23 July 2002, the applicant pled guilty and was found guilty by a special court-martial of wrongful distribution of some amount of methylenedioxymeth-amphetamine, a Schedule I controlled substance; and wrongful use of marijuana. His sentence consisted of reduction to pay grade E-1, forfeiture of $250.00 pay per month for 10 months, confinement for 3 months, and to be discharged from the service with a bad conduct discharge.
3. On 8 December 2002, the convening authority approved only so much of the sentence that provided for 90 days confinement, reduction to pay grade E-1, forfeiture of $250.00 pay per month for 10 months, confinement for 3 months, and to be discharged from the service with a bad conduct discharge.
4. A DA Form 31 submitted by the applicant indicates he requested and was approved for 1 day of excess leave on 18 October 2002.
5. Detachment A, 90th Personnel Services Battalion [Germany] Orders 290-400, dated 17 October 2002, authorized the applicant to travel at government expense to his home in Olympia, WA. These orders contained the entry "Excess leave date: 18 October 2002 thru 18 October 2002."
6. Headquarters, 1st Armored Division, Baghdad International Airport Complex Special Court-Martial Order Number 14, dated 17 December 2003 indicated that the applicant's sentence of 90 days confinement, reduction to pay grade E-1, forfeiture of $250.00 pay per month for 10 months, confinement for 3 months, and a discharge from the service with a bad conduct discharge had been finally affirmed and ordered the bad conduct discharge to be executed.
7. Headquarters, U.S. Army Armor Center, Fort Knox, KY Orders 095-0160, dated 4 April 2008, reassigned the applicant to the Fort Knox Transition Point with a date of discharge of 9 April 2008. These orders indicated the applicant was not required to return to Fort Knox for outprocessing.
8. On 9 April 2008, the applicant was discharged with a bad conduct discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, by reason of court-martial, other. Item 12b (Separation Date This Period) contains the entry "2008 04 09" (9 April 2008). Item 18 (Remarks) indicates the applicant was on excess leave for 1,998 days from 21 October 2002 to 9 April 2008.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 of this regulation establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.
10. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The regulation provides, in pertinent part, that the Soldier's transition date will be entered in item 12b of his DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. The applicant's court-martial sentence was affirmed on 17 December 2003. In accordance with the regulation, the applicant could not have been discharged prior to this date.
2. There is no evidence or indication in the available records as to why the applicant was not discharged until 9 April 2008.
3. The applicant's discharge orders show his date of discharge as 9 April 2008. Therefore, the entry in item 12b of his DD Form 214 is correct.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.
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) AR20080013226
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ABCMR Record of Proceedings (cont) AR20080013226
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