IN THE CASE OF:	

		BOARD DATE:	  19 February 2009

		DOCKET NUMBER:  AR20080017274 


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 his discharge that was upgraded by the Army Discharge Review Board (ADRB) be changed to a 15-year retirement that was previously approved on 1 August 1994.

2.  The applicant makes no additional statements in support of his application. 

3.  The applicant provides, in support of his application, copies of his letter of conditional approval for early retirement, a letter from the ADRB, and his ADRB Case Report and Directive. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.



2.  The applicant's military personnel records show he enlisted in the Regular Army on 19 July 1977 for a period of 3 years.  He reenlisted on 20 February 1980 and 22 May 1986.    

3.  The applicant was promoted to staff sergeant/pay grade E-6 effective 27 May 1986.

4.  On 14 February 1994, U.S. Total Army Personnel Command, Alexandria, Virginia (now known as Human Resources Command [HRC-ALEX]) conditionally approved the applicant's request for early retirement under the Fiscal Year (FY) 94 Early Retirement Program.  He was conditionally approved for retirement on 
1 August 1994.

5.  The applicant departed absent without leave (AWOL) on 17 March 1994 and a Report to Suspend Favorable Personnel Actions (Flag) was initiated effective 
18 March 1994.  He returned to military control on 21 April 1994.  The records do not contain a disposition for this period of AWOL.

6.  The applicant again departed AWOL on 22 April 1994 and was dropped from the rolls on 22 May 1994.  The applicant returned to military control on 12 June 1995.

7.  On 16 June 1995, court-martial charges were preferred against the applicant for being AWOL during the period from 22 April 1994 to 12 June 1995.

8.  On 18 June 1995, the applicant voluntarily requested discharge in lieu of trial by courts-martial.  He acknowledged that he was making the request of his own free will, he understood the elements of the offense he was charged with, and that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate; that he would be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs); and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

9.  A captain of the Judge Advocate Corps countersigned this statement and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Code of Military Justice; of the possible effects of a discharge under other than honorable conditions, if his request is approved; and of the procedures and rights available to him.

10.  The applicant's commander recommended approval of the request for discharge and that the applicant receive a discharge under other than honorable conditions.

11.  On 7 July 1995, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that his characterization be under other than honorable conditions and if serving in a pay grade above private/E-1 he be reduced to private E-1, prior to execution of the discharge.

12.  On 10 August 1995, the applicant was discharged in lieu of trial by court-martial.  Item 24 (Character of Service) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) with separation date of 
10 August 1995 contains the entry "under other than honorable conditions."

13.  The applicant applied to the ADRB to upgrade his discharge.  On 2 August 2006, the ADRB reviewed and changed the characterization of his discharge to honorable.  This entailed a pay grade restoration to staff sergeant/pay grade E-6.

14.  Section 4403 (Temporary Early Retirement Authority) of the National Defense Authorization Act for Fiscal Year 1993 (NDAA FY93) provided the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces through 1995.  The NDAA FY 93 provided that the Secretary of each military department may prescribe regulations and policies regarding the criteria for eligibility for early retirement by reason of eligibility pursuant to this section and for the approval of applications for such retirement. Such criteria may include factors such as grade, years of service, and skill.  For purposes of this section, the active force drawdown period is the period beginning on the date of the enactment of this Act and ending on 
1 October 1995.

15.  Commander, Personnel Command (now known as Human Resources Command [HRC]), Alexandria, Virginia message 101010Z August 1993, Subject: FY 94 Early Retirement Program, implemented the provisions of the Section 4403 of the NDAA FY 93 for the Department of the Army for FY94.  Paragraph 2B of this message provides that individuals approved for early retirement under the provisions of the FY94 Early Retirement Program must depart active duty no later than 31 August 1994.  Paragraph 3D(9) of this message provides that individuals who are already approved for early retirement and are subsequently flagged prior to the date of scheduled retirement will not be eligible for early retirement unless approved by the appropriate Headquarters, Department of the Army (HQDA) approval authority.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant had conditional approval for early retirement on 1 August 1994 under the provisions of the FY94 Early Retirement Program.  However, the applicant was flagged on 18 March 1994 due to his going AWOL on 17 March 1994.  This action made the applicant ineligible for early retirement unless approved by HQDA.  There is no evidence HQDA approved the applicant's retirement subsequent to the flagging action.

2.  The applicant went AWOL again on 22 April 1994 and he was dropped from the rolls on 22 May 1994.  This action would have in of itself canceled the applicant's conditional approval for early retirement.

3.  Under the provisions of the FY94 Early Retirement Program the applicant had to have departed active duty no later than 31 August 1994.  On 31 August 1994, the applicant was in an AWOL status.  Therefore, the authority provided in his letter of approval for early retirement expired.

4.  In view of the above, the applicant did not have approval for early retirement at the time he requested and received a discharge under the provisions of 
Chapter 10 of Army Regulation 635-200.  Therefore, the ADRB's decision to upgrade the applicant's discharge has no bearing on his eligibility for early retirement.

5.  The temporary early retirement authority provided in the NDAA FY93 expired on 1 October 1995.

6.  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)                                         AR20080017274





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ABCMR Record of Proceedings (cont)                                         AR20080017274



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