IN THE CASE OF:	  

		BOARD DATE:	        19 MAY 2009

		DOCKET NUMBER:  AR20090003912 


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, in effect, that he be granted retirement by reason of length of service. 

2.  The applicant states, in effect, that his discharge was upgraded to a general discharge by the Army Discharge Review Board (ADRB) and he now desires to be retired by length of service.  He goes on to state that he served 18 years and 9 months and his record of service was very good and warrants that he be retired by reason of length of service. 

3.  The applicant provides a letter explaining his application, a copy of the ADRB proceedings, documents from the Defense Finance and Accounting Service (DFAS) regarding back pay associated with the ADRB discharge upgrade, his new DD Form 214 (Certificate of Release or Discharge from Active Duty), his voided DD Form 214, and a DD Form 214 issued in 1979.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army at Fort Hamilton, New York on 7 April 1975.  He completed his training as an infantryman and served until he was honorably released from active duty (REFRAD) at Fort Hood, Texas in the rank of sergeant on 6 April 1979, due to the expiration of his term of service.

2.  He again enlisted in the Regular Army on 27 July 1979 and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-7 on 1 August 1992.
3.  On 1 October 1993, while serving at Fort Hood, military police investigators observed the applicant selling military property to an establishment off-post and charges were preferred against the applicant for making a false official statement, wrongful disposition of government property and larceny of government property.  The applicant invoked his rights and elected not to make a statement without consulting with counsel.

4.  On 15 November 1993, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further elected not to submit a statement in his own behalf.

5.  The appropriate authority (a major general) approved the applicant’s request on 24 November 1993 and directed that he be reduced to the pay grade of E-1 and discharged under other than honorable conditions.

6.  Accordingly, he was discharged under other than honorable conditions on 8 December 1993, under the provisions of Army Regulation 635-200, chapter 10. in lieu of trial by court-martial.  He had served 18 years, 4 months and 12 days of total active service.

7.  On 16 October 1995, the applicant applied to the ADRB requesting that his discharge be upgraded to an honorable discharge.  He contended at that time that his discharge was inequitable because it was based on one isolated incident, because he did not have proper counsel and was coerced into requesting discharge, because he was not guilty of the charges against him, but believed that he would not receive a fair trial, and that if persons who ran to Canada could receive a Presidential Pardon, he should receive an upgrade of his discharge.  The ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his application on 20 March 1998.

8.  The applicant again applied to the ADRB on 21 May 2008 for an upgrade of his discharge and he was granted a personal appearance before that board on 22 September 2008.
9.  After reviewing the available evidence and hearing testimony from the applicant, the ADRB determined that while it did not condone the applicant’s misconduct, the characterization of his service was too harsh and inequitable given his years of service.  The ADRB voted to upgrade his discharge to a general discharge and to restore his rank to the pay grade of E-7.  However, the ADRB found that the narrative reason and authority for separation were correct and voted not to change them.

10.  Accordingly, the applicant was issued a new DD Form 214 showing that he was discharged in the pay grade of E-7, under honorable conditions, on 8 December 1993, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.  

12.  U. S. Army Personnel Command (PERSCOM) message number 93-164, dated 20 April 1993, announced the criteria for the fiscal year 1993 early retirement program (the first year the program was offered).  It stated, in pertinent part, that Soldiers with at least 15 years of active federal service (AFS) but less than 20 years of AFS, in selected pay grades and military occupational specialties, could apply for early retirement.  Personnel approved for early retirement will receive the same benefits as individuals with 20 years or more service except that their retired pay will be reduced.  It also stated that individuals who had already separated under the provisions of any other voluntary or involuntary separation program were not eligible for early retirement (program was not retro-active).  The Temporary Early Retirement Authority (TERA) was used as a temporary drawdown measure and was only in effect until Fiscal Year 1999.

13.  Army Regulation 635-200, in effect at the time, stipulated that Soldiers promoted to the pay grade of E-7 and above incurred a 2-year service obligation from the effective date of their promotion.  It also provided, pertinently, that an enlisted member who had completed 20, but less than 30, years of active Federal service in the Armed Forces may, at the discretion of the Secretary of the Army, be retired at his or her request in accordance with title 10, United States Code, section 3914.  It also provides that enlisted members of the Regular Army must be on active duty when they are retired.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the actions of the ADRB, the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so, he admitted guilt to the charges against him.

4.  At the time of the applicant's discharge under other than honorable conditions, he was not eligible for early retirement under any programs that were in effect.  Once he was discharged, he was ineligible to apply for retirement because an individual must be on active duty in good standing in order to apply for retirement and must be on active duty the day prior to retirement.  Accordingly, he is neither eligible for nor entitled to be retired by length of service.

5.  Notwithstanding that the ADRB upgraded his discharge under other than honorable conditions to a general discharge, that in itself does not convey any entitlement to retirement eligibility.

6.  The applicant's contentions have been considered; however, they are not sufficiently mitigating to warrant relief when compared to his misconduct and the fact that he was not then or now eligible for any of the authorized retirement programs.

7.  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 this 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.




      _______ _ 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)                                         AR20090003912



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ABCMR Record of Proceedings (cont)                                         AR20090003912



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