IN THE CASE OF:	  

		BOARD DATE:	        23 December 2008

		DOCKET NUMBER:  AR20080014864 


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 reconsideration of his earlier request for temporary early retirement with back pay and allowances.

2.  The applicant states that his two instances of nonjudicial punishment were racially motivated.

3.  The applicant provides a self-authored statement, dated 14 August 2008, in support of his application.

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 AR20080007542, on 7 August 2008.

2.  The applicant submitted a self-authored statement, dated 14 August 2008, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's record shows he enlisted in the Regular Army on 13 September 1978 and held military occupational specialty 76Y (Unit Supply Specialist).  His records also show that he was promoted to sergeant/E-5 on 29 March 1984.

4.  The applicant's records reveal a history of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 29 January 1991, for being drunk and disorderly, disrespecting a commissioned officer, and willfully disobeying a lawful order from a commissioned officer on or about 10 December 1991.  His punishment consisted of a reduction to specialist four/E-4, forfeiture of $583.00 pay for 2 months (suspended for 6 months), and 60 days of restriction; and 

	b.  on 8 March 1991, for unlawfully striking a female with an open hand on the shoulders and by grabbing her and violently shaking her, resisting apprehension by an armed force policeman, and disobeying a lawful order from a commissioned officer on or about 2 March 1991.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $376.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty.

5.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the applicant's records contain a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that he was honorably discharged on 20 March 1991 in accordance with paragraph 5-13 of Army Regulation 635-200 (Personnel Separations) for personality disorder.  This form shows his rank/grade as that of PVT/E-1 and that he completed 12 years, 6 months, and 8 days of active Federal service.

6.  The applicant submitted a self-authored statement, dated 14 August 2008, in which he states that two wrongs do not make a right, that he accepts partial responsibility for his discharge, and that the Army needs to accept its responsibility. He adds that in previous assignments and prior to 29 January 1991 when he arrived at his unit of assignment, he did not suffer from personality disorder.  Had his chain of command afforded him the opportunity to transfer to another unit after his first instance of nonjudicial punishment, his second instance of nonjudicial punishment would not have happened.  He concludes that he was railroaded and that both instances of nonjudicial punishment were racially motivated.

7.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a Soldier may be separated for personality disorder, not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interferes with assignment to or performance of duty.  The regulation requires that the condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty.

8.  Public Law 102-484, enacted on 23 October 1992, established the Temporary Early Retirement Act (TERA) which permitted selected military members to retire early and accrue additional military credits if they gained employment with qualifying public or community service organizations.  Section 4403(a) gave each of the Armed Services the temporary early retirement authority to offer retirement at 15 to 20 years of service.  Public Law 107-314, National Defense Authorization Act for fiscal year 2003, section 554, extended the TERA Program end date to 1 September 2002. 

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's nonjudicial punishments, the evidence of record clearly shows that in both instances the applicant committed certain infractions and/or misconduct and was accordingly punished under the provisions of Article 15 of the UCMJ.  Contrary to his argument that his nonjudicial punishments were racially motivated, in one instance, as a noncommissioned officer, the applicant was drunk and disorderly and disrespected and disobeyed a commissioned officer.  In another instance he assaulted a female.  It is unclear how this misconduct is racially motivated.

2.  With respect to the applicant's discharge, the applicant's record is void of the facts and circumstances pertaining to his discharge.  However, his DD Form 214 clearly shows he was honorably discharged as a PVT/E-1 on 20 March 1991 for a personality disorder.  In the absence of evidence to the contrary, it is presumed that applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

3.  With respect to early retirement, the evidence of record shows that at the time of the applicant’s discharge from the service in 1991, TERA did not exist.  When TERA was implemented in 1992, the year after the applicant's discharge, it contained no retroactive provisions.  Accordingly, the applicant was not eligible for a 15-year retirement, with back pay and allowances, and there is no basis to grant him one at this time.

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to the requested relief.


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 to amend the decision of the ABCMR set forth in Docket Number AR20080007542, dated 8 August 2008.


															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)                                         AR20080014864



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ABCMR Record of Proceedings (cont)                                         AR20080014864



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