IN THE CASE OF:	  

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20090021440 


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 issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty). 

2.  The applicant states that he was dismissed from the Army on 31 January 2002 as a result of a general court-martial conviction but he was never issued a DD Form 214.  He would like one issued.

3.  The applicant provides the following documents:

* A copy of General Court-Martial Order Number 5, dated 17 January 2002
* A copy of a letter from the U.S. Army Human Resources Command, St. Louis, MO (USAHRC-STL), dated 4 December 2009
* A copy of two Official Statements of Service, dated 29 March 2004 and 
2 April 2004
* A copy of his Officer Record Brief (ORB), dated 22 December 1998
* A copy of his ARPC Form 249-E (Chronological Statement of Retirements Points), dated 12 February 2009
* A copy of his relief from active duty for training (ADT) DD Form 214 for the period ending 10 July 1981

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.  Having had prior service in the U.S. Army Reserve (USAR), the applicant's records show he was appointed as a second lieutenant in the Army Nurse Corps of the USAR and he executed a DA Form 71 (Oath of Office - Military Personnel) on 6 March 1984.  He subsequently entered active duty on 14 July 1984, completed various military training courses, and he was promoted to major on
1 July 1994.  He was assigned to Womack Army Medical Center, Fort Bragg, NC.

3.  On 25 June 1999, he pled guilty at a general court-martial to one specification of wrongfully using government-owned communications systems, electronic mail, and internet system to engage in the transmission of pornography; two specifications of conduct unbecoming an officer; two specifications of sending or receiving mail/transport of interstate pornography; one specification of attempting to entice a person under 16 years of age; and one specification of wrongfully using a government computer for unofficial business.  The court sentenced him to dismissal from the service and confinement for 24 months.

4.  He was subsequently confined at the U.S. Disciplinary Barracks, Fort Leavenworth, KS, effective 25 June 1999.

5.  On 26 August 1999, the convening authority approved the sentence except for the portion extending to the dismissal.

6.  On 30 January 2001, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  The conviction became final on 1 June 2001 when the applicant filed a motion to withdraw his petition for a grant of review.

7.  On 17 January 2002, the Assistant Secretary of the Army (Manpower and Reserve Affairs) approved the affirmed sentence and ordered it executed.  The Chief of Staff of the Army subsequently ordered the applicant to cease to be an officer of the U.S. Army at midnight on 31 January 2002. 

8.  The applicant was dismissed from the Army on 31 January 2002.  A copy of his DD Form 214 is not available for review with this case.

9.  He submitted the following documents:

* a copy of a letter from USAHRC-STL, dated 4 December 2009, informing him that several attempts were made to locate his DD Form 214 but it could not be located
* a copy of his ORB
* a copy of his ARPC-249-E
* a copy of a previously-issued DD Form 214 (enlisted service)
* a copy of a memorandum from the U.S. Disciplinary Barracks, Fort Leavenworth, dated 13 June 2000

10.  He also submitted two Official Statements of Service issued by
USAHRC-STL as follows:

	a.  An Official Statement of Service, dated 29 March 2004, listing his Reserve service from 21 December 1979 - 15 July 1984; his character of service as honorable; his narrative reason for discharge as completion of required service; and his dates of active duty as unable to determine.

	b.  An Official Statement of Service, dated 2 April 2004, listing his dates of active service from 14 July 1999 - 31 July 1999; his character of service as unknown; and the reason for discharge as a result of a court-martial.

11.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  Paragraph 1-22 provides for the type discharge and characterization of service.  It states an officer’s service will be characterized as "to be determined" when released from active duty when being processed for elimination action.  No formal discharge certificate will be issued when the officer is dismissed as a result of sentence of court-martial.  

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is a summary of a Soldier’s most recent period of continuous active duty and provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Chapter 2 of this regulation states that Reentry Codes (RE) are not applicable to officers and that the characterization or description of service are determined by 

directives authorizing separation.  For a Soldier being released from custody and control of the Army due to a void or voided enlistment, enter “hyphens.”  Otherwise, the entry must be one of the following: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, or uncharacterized.  Chapter 2 also directs not to issue DD Forms 214 to replace record copies or DD Forms 214 lost by Soldiers.  If no DD Form 214 is available, issue a "Statement of Service" or transcript of military record.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served on active duty from 14 July 1984 through 31 January 2002 and he had an unknown period of lost time due to confinement.  It is unclear if a DD Form 214 was issued in his case.  By regulation, if no DD Form 214 is available, a Statement of Service is issued in lieu of this form.

2.  The applicant had already been issued an Official Statement of Service by USAHRC-STL.  However, this statement of service contains incorrect information.  Commissioned officers cannot be reduced in rank by a court-martial, nor can they be given a bad conduct discharge or a dishonorable discharge.  If an officer is convicted by a general court-martial, then that officer's sentence can include a "dismissal."  Therefore, in the absence of a DD Form 214, he should be issued a correct and accurate statement of service as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding the Official Statement of Service, issued by USAHRC-STL on 2 April 2004 and
	b.  issuing the applicant a new Official Statement of Service listing his active service from 14 July 1984 to 31 January 2002; character of service as "N/A" (not applicable); reenlistment eligibility code as "N/A" (not applicable); reason for discharge as "Dismissal - General Court-Martial."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to issuing him a DD Form 214.



      ____________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)                                         AR20090021440



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ABCMR Record of Proceedings (cont)                                         AR20090021440



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