IN THE CASE OF:	

		BOARD DATE:	       2 JUNE 2009

		DOCKET NUMBER:  AR20090000677 


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 dishonorable discharge (bad conduct discharge) be changed to honorable.  In effect, he requests the issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was honorably discharged.

2.  The applicant states that a motion for reconsideration of his case was granted by the U.S. Army Court of Criminal Appeals which led to the dismissal of his sentence to a bad conduct discharge.  

3.  The applicant provides a copy of the U.S. Army Military Court of Criminal Appeals summary disposition on reconsideration, dated 5 May 2008, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 27 May 1992 and was trained in military occupational specialty (MOS) 92A (Automated Logistical Specialist).  His records also show he executed a series of reenlistments in the Regular Army and attained the rank of sergeant (SGT)/E-5.

2.  On 4 December 2006, Headquarters, III Corps and Fort Hood, Fort Hood, TX, published Orders 338-0133 directing the applicant’s discharge from the Army.  Accordingly, he was honorably discharged on 11 March 2007 by reason of completion of his required active service.  The DD Form 214 he was issued shows he completed 14 years, 9 months, and 15 days of creditable active service and he was given half involuntary separation pay.

3.  In a phone conversation with the analyst of record on 9 May 2009, the applicant indicated that he was scheduled to depart his unit on transition leave (also called terminal leave) on or around 27 December 2006.  He had approximately 67 days of accrued leave at the time.  He added that approximately 5 days into his transition leave, his unit commander verbally instructed him to report back to his unit due to a pending Uniform Code of Military Justice (UCMJ) action.  The applicant indicated that he came back to his unit on or around 3 January 2007, but was not given any paperwork.  A copy of his transition leave form is not available for review with this case.

4.  On 4 April 2007, the applicant pled not guilty at a General Court-Martial to one specification of committing an indecent act upon the body of a female under 16 years of age, not his wife, on divers occasions, between on or about 19 July 2000 and 19 July 2001.  The Court found him guilty of the said offense (substituting the dates to show from early spring to on or about 1 February 2001) and sentenced him to a forfeiture of $600.00 pay per month for 12 months and a bad conduct discharge.  The sentence was adjudged on 4 April 2007.

5.  On 17 April 2007, by memorandum, the Senior Trial Counsel notified the applicant of the intent of the Commander, Fort Hood, to consider placing him (the applicant) on involuntary excess leave in accordance with paragraph 5-19 of Army Regulation 600-8-10 (Leave and Passes).  He was also instructed to submit matters on his behalf supporting a request not to be placed on involuntary excess leave, within 72 hours from receipt of this notification.  It is unclear, however, if the applicant submitted any matters on his behalf.

6.  On 10 May 2007, the U.S. Army Transition Center, Fort Hood, TX, published a memorandum, rescinding the applicant’s discharge orders, dated 4 December 2006, and voiding his DD Form 214, dated 11 March 2007.

7.  On 23 May 2007, by memorandum, the Senior Trial Counsel notified the applicant that he was placed on involuntary excess leave while awaiting a punitive discharge.

8.  On 29 June 2007, the convening authority approved the adjudged sentence, and except for the bad conduct discharge, he ordered it executed. 



9.  On 8 May 2008, the U.S. Army Court of Criminal Appeals reviewed the applicant’s case and ordered the findings of guilty and the sentence be set aside and dismissed.  It also ordered the applicant’s rights, privileges, and property restored.  

10.  There is no indication that the applicant was issued a DD Form 214 subsequent to the Court’s decision.  

11.  Army Regulation 635-200 (Personnel Separations) set forth the basic authority for the separation of enlisted personnel.  Chapter 4 of this regulation states that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.

12.  Paragraph 1-22 of Army Regulation 635-200 states, in pertinent part, that Soldiers under sentence to an unsuspended dishonorable or bad conduct discharge will not be discharged before appellate review is completed, unless so directed by HQDA.  If the soldier is absent without leave at the time appellate review is completed, the punitive discharge may still be carried out.  This paragraph does not apply to Soldiers processed for discharge under the provisions of chapter 10.

13.  Paragraph 3-11 of Army Regulation 635-200 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

14.  Except as provided in paragraph 3–12 of this regulation, a Soldier placed on excess leave without pay pending completion of appellate review may be discharged without returning to a military installation when the sentence is affirmed.  When appellate review is completed and the affirmed sentence ordered executed, the appropriate discharge documents will be completed and mailed by certified mail.  The documents are mailed, return receipt requested, to the address furnished by the Soldier. The return address will be shown as Commander, U.S. Army Human Resources Command, St. Louis, MO.  Before departure on excess leave, action will be taken to complete as much of the preprocessing as is appropriate, including partial completion of DD Form 214.

15.  Army Regulation 600-8-10 prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System.  Chapter 5 of Army Regulation 600-8-10 states, in pertinent part, that the general court-

martial authority may direct an involuntary excess leave if a Soldier is sentenced by court-martial to dismissal or a punitive discharge, or the discharge or dismissal is unsuspended, or the Soldier is awaiting completion of appellate review.

16.  The general court-martial authority will cause a Soldier to be notified in writing of the intent to consider him or her for involuntary excess leave.  Soldiers are given a reasonable time, normally 72 hours, in which to present matters supporting a request to continue on duty, if desired.  Excess leave begins the day the sentence is approved by the general court-martial authority or any day after the day sentence is approved.  Excess leave ends upon final judgment (Rules for Court-Martial (RCM) 1113 and 1209), when the sentence is ordered executed, or other appropriate action is promulgated, or at any earlier time as authorized by the General Court-Martial authority.  If the court-martial sentence is set aside or disapproved, a Soldier receives pay and allowances for period of required excess leave provided that a rehearing or new trial does not result in a dismissal or a dishonorable or bad conduct discharge.  The Soldier’s pay and allowances must be reduced by the amount of income and public assistance benefits received during period of excess leave.

DISCUSSION AND CONCLUSIONS:

1.  The applicant signed out on terminal leave on or around 27 December 2006.  His separation date was 11 March 2007.  A few days into his terminal leave, he was directed by his unit commander to remain in the Army pending UCMJ action. Accordingly, the applicant reported back to his unit.  He was never discharged from the Army on 11 March 2007. 

2.  The applicant was subsequently convicted by a general court-martial on         4 April 2007 and was sentenced to a forfeiture of pay and a bad conduct discharge.  Subsequent to his original discharge date, and specifically on 10 May 2007, his separation orders were rescinded and his DD Form 214 was voided.

3.  On 23 May 2007, by memorandum, the applicant was notified that he was placed on involuntary excess leave pending the appellate review and on 29 June 2007, the convening authority approved the adjudged sentence.

4.  On 8 May 2008, the U.S. Army Court of Criminal Appeals ordered the findings of guilty and the sentence be set aside and dismissed.  At that time, the applicant should have been issued a DD Form 214. 


5.  The applicant is therefore entitled to the issuance of new separation orders and a new DD Form 214 that shows he was honorably discharged on 8 May 2008 and captures his entire period of service, through 8 May 2008, the date his sentence was overturned, as well as his involuntary excess leave.

BOARD VOTE:

___X_____  ___X_____  __X______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  issuing the applicant new separation orders with an effective date of discharge as “8 May 2008”; 

	b.  issuing the applicant a new DD Form 214 that shows he was honorably discharged on 8 May 2008.  This DD Form 214 should be similar to that issued on 11 March 2007, with the following corrections:

		(1)  item 11 (Primary Specialty) from “92A2O Automated Logistical 14 years and 5 months” to “92A2O Automated Logistical 15 years 7 months”; 

		(2)  item 12b (Separation Date This Period) from “2007  03  11” to       “2008  05  08”;

		(3)  item 12c (Net Service This Period) from “0014  09  15” to              “0015  11  10”; and 

		(4)  item 18 (Remarks) add the entry “Extended for the convenience of the Government from 20070311 to 20070522” and the entry “Involuntary excess leave (creditable for all purposes except pay and allowances)--from 20070523 to 20080508” ;

2.  The Defense Finance and Accounting Service should audit the applicant's finance records and pay to him any restored forfeiture of pay as a result of the setting aside of his court-martial conviction and any and all back pay and allowances due as a result of the above corrections to include recomputing his half involuntary separation pay, as applicable. 




      _______ _  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)                                         AR20090000677





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ABCMR Record of Proceedings (cont)                                         AR20090000677



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