IN THE CASE OF:
BOARD DATE: 14 October 2010
DOCKET NUMBER: AR20100010043
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 correction of his record to show he was separated under the provisions of Army Regulation 635-200, chapter 12 by reason of retirement for length of service effective September 2005.
2. The applicant states:
a. other Soldiers committed like offenses but were allowed to retain their
rank and retire;
b. he entered a plea because his public offender did not intend to present a
defense but instead rested on the prosecution's failure to prove guilt and because both of his attorneys assured him that the prosecuting assistant U.S. Attorney wound intervene on his behalf with his chain of command to request he be allowed to retire;
c. he was not in his right frame of mind at the time of his offense and he
stayed drunk constantly;
d. although the things that he said were immoral, unethical, repugnant and
wrong, he never intended to commit a crime or hurt or take advantage of anyone;
e. he feels a tremendous guilt for the horrible things he said and mistake
he made;
f. the under other than honorable conditions (UOTHC) discharge denies him retirement benefits and thereby wipesout 25 years of his life resulting in his loss of hundreds of thousands of dollars for making one horrible mistake at the end of his career;
g. it doesnt seem reasonable that his entire adult life should be negated by something that the Federal Government is already punishing him for; and
h. he asks that his record be corrected so he can try to return to some type
of normalcy and attempt to make up to his family for the horrible shame and embarrassment that he bought upon them.
3. The applicant provides a self-authored statement in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicants military record shows he enlisted in the Regular Army (RA) on 7 August 1980. He served in military occupational specialties (MOS) 11B (Infantryman) and 79S (Career Counselor).
2. The applicants Enlisted Record Brief (ERB) shows in Section III (Service Data) that he was promoted to sergeant major (SGM)/E-9 on 1 March 1999, and this was the highest rank he attained while serving on active duty. His record also shows he was reduced to private (PV1)/E-1 on 4 April 2006, and this was his final rank held.
3. The applicants record is void of a complete separation packet containing the specific facts and circumstances surrounding his discharge processing. However, it does contain an Army Human Resources Command (AHRC) memorandum dated 13 February 2008 which shows that an involuntary request for the applicants discharge under the provisions of Army Regulation 635-200, Chapter 14-5 was reviewed by the Assistant Secretary of the Army (Manpower and Reserve Affairs) and approved. He was directed to receive a characterization of service of UOTHC.
4. On 17 April 2008, the applicant was discharged from active duty. The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at that time shows he had completed 25 years and 13 days of creditable active military service and had accrued lost time from 4 August 2005 to 1 April 2008.
5. The DD Form 214 shows the applicant was separated by reason of Misconduct (Civil Conviction) under the provisions of Army Regulation 635-200, Chapter 14, Section II, with a UOTHC discharge.
6. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A UOTHC discharge is normally appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his record should be corrected to show he was retired under the provisions of Army Regulation 635-200, Chapter 12, by reason of for length of service.
2. The evidence of record confirms the applicant was discharged under the provisions of Chapter 14, Army Regulation 635-200 by reason of Misconduct (Civil Conviction) as evidenced by an AHRC memorandum dated 13 February 2008 and the DD Form 214 on file. Therefore, absent evidence to the contrary, it is concluded the applicants separation processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.
3. The applicant is advised that field commanders and separation authorities may select the method of punishment deemed necessary based on the merits of the individual case before them. Not knowing the facts in the cases of the "other Soldiers" he mentions, there is a reluctance to substitute the Board's judgment for that of his commander.
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) AR20100010043
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ABCMR Record of Proceedings (cont) AR20100010043
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