IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100020944


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:

* upgrade of his discharge to fully honorable
* payment of 1 months' basic pay for his final month of active service
* payment of severance pay at the half-pay rate
* payment of basic allowance for housing (BAH) at the with-dependents rate for the period April-August 2007

2.  The applicant states he was improperly placed in an excess leave status by his unit and this caused him to be improperly out-processed from active duty in August 2007.  All of the above errors accrued from his excess leave status.

3.  The applicant provides:

* a 1-page statement
* the member copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a 1 May 2009 memorandum, subject:  Request for Issuance of DD Form 215 (Correction to DD Form 214)
* a DD Form 215, dated 31 July 2009, with Member 1 and Member 4 copies
* a 30 July 2009 information paper
* a 5 May 2008 letter from the Inspector General, Headquarters, U.S. Army Special Forces Command, Fort Bragg, NC
* a 21 April 2009 memorandum for record, subject:  Involuntary Excess Leave
* a 21 September 20XX letter from the Defense Finance and Accounting Service (DFAS), Indianapolis, IN
* a 2-page DFAS-DE Form 0-641 (Statement of Military Pay Account)
* a DJMS-AC form (Request for Manual TD Form W-2c)
* a DFAS-DE Form 0-642 (Statement of Military Leave Account)
* a Selective Reenlistment Bonus Recoupment calculation

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 served 9 years, 8 months, and 9 days in the Regular Army from 19 July 1996 through 10 August 2007.  He rose to the rank of staff sergeant (SSG)/E-6, but was discharged as a specialist (SPC)/E-4.  His DD Form 214 shows his character of service as honorable.

3.  The applicant received two general officer memoranda of reprimand (GOMOR) as follows:

* on 2 July 1997 for drunk driving in El Paso, TX
* on 29 April 2005 for running a red light, driving on a revoked license, driving with an expired license plate, failing to stop at a traffic accident in which there were injuries, and drunk driving in Fayetteville, NC

4.  The applicant was tried by a special court-martial on 16 August 2005 for the following offenses:

* Charge I – Article 111, Uniform Code of Military Justice (UCMJ)

* Specification 1 – drunk driving on or about 18  September 2004
* Specification 2 – recklessly operating a motor vehicle


* Charge II – Article 112, UCMJ

* Specification – being drunk on duty on or about 12 May 2005

* Charge III – Article 134, UCMJ

* Specification 1 – driving a motor vehicle and fleeing the scene of an accident on or about 18 September 2004
* Specification 2 – operating a motor vehicle with a suspended license on or about 12 May 2005

5.  The applicant pled not guilty to all charges and specifications, but was found guilty of Charge III, Specification 1.  He was sentenced to be confined for 45 days and reduced from SSG to SPC.

6.  On 24 January 2006, the applicant was arrested by civilian police for domestic violence and communicating threats to his girlfriend.  Subsequent to this arrest, authorities obtained a federally-issued search warrant and found weapons, ammunition, and explosives in a rented storage locker.  On 28 March 2006, the applicant was convicted in U.S. District Court for the Eastern District of North Carolina for the offense of "not conforming to the storage of explosive material" under Title 10, U.S. Code, section 842.

7.  On an unknown date, the applicant's chain of command initiated administrative action to separate him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct.  The applicant requested and received a hearing by a board of officers.  The board of officers found that his misconduct was supported by a preponderance of evidence, but recommended he not be separated.

8.  On 18 May 2006, the Commanding General (CG), U.S. Army Special Forces Command, Fort Bragg, notified the applicant he was initiating separation action against him under the provisions of paragraph 5-3, Army Regulation 635-200, for the convenience of the government.  The reasons provided were:

* on 1 May 2006, an administrative separation board affirmed his misconduct under the provisions of Army Regulation 635-200, chapter 14
* on 18 September  2004, he fled the scene of a motor vehicle accident
* on or before 23 January 2006, he stole military property
* on 23 January 2006, he communicated a threat to his girlfriend, then assaulted her
* on 23 January 2006, he wrongfully possessed an unregistered firearm

9.  On 22 May 2006, the applicant acknowledged notification of his CG's intent to separate him.  On 28 March 2006, the applicant was placed on involuntary excess leave without pay.

10.  On 9 June 2006, the CG, U.S. Army Special Forces Command, recommended to Headquarters, Department of the Army (HQDA), that the applicant be separated with a general discharge because of his status as a habitual offender rendering him incapable of conforming his personal and professional conduct to that expected of a U.S. Army Soldier.

11.  On 17 January 2007, the Office of the Judge Advocate General of the Army issued a legal review concerning the applicant's recommended involuntary discharge under the provisions of Army Regulation 635-200, paragraph 5-3 (Secretarial Authority).  The review opined, in pertinent part:

* the CG was free to recommend such action under the provisions of Army Regulation 635-200, paragraph 5-3, even though a board of officers recommended retention in lieu of separation under the provisions of Army Regulation 635-200, chapter 14
* under the provisions of Title 10, U.S. Code, section 1169, DOD Directive 1332.14, and Army Regulation 635-200, the Secretary may direct discharge and characterize service as either general or honorable
* under the provisions of Title 10, U.S. Code, section 1174, the Secretary may award full, half, or no severance pay

12.  On 9 May 2007, U.S. Army Human Resources Command (HRC), Alexandria, VA, notified the CG, U.S. Army Special Forces Command, that the Assistant Secretary of the Army (Manpower and Reserve Affairs) directed the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-3 (Secretarial Authority), with a character of service of under honorable conditions and with severance pay authorized at the half-pay level.  Inexplicably, the applicant was separated with an honorable discharge on 10 August 2007.

13.  The DFAS-DE Form 0-641 provided by the applicant shows he:

* was paid basic pay from 1 August 2005-10 August 2007 except for his civilian confinement from 24 January-28 March 2006
* was paid BAH at the with dependent rate for the Fort Bragg/Pope Air Force Base locale from 1 August 2005-10 August 2007 except for his military confinement from 18 August-29 September 2005 and his civilian confinement from 24 January-28 March 2006
* was paid special authorization for separation (severance) pay at the half-pay rate for 10 years, 9 months, and 22 days minus lost time of 3 months and 19 days (total 129 months when rounded) at the E-4 rate

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request relative to his basic pay, BAH, and severance pay is without merit.  The DFAS documents which the applicant provided clearly show he was paid all due pay and allowances during the entire period of service while undergoing separation processing.

2.  The applicant's request relative to an upgrade of his discharge was reviewed.  It was initially thought that the applicant received an honorable discharge as his DD Form 214 shows his character of service as "honorable."  However, in processing the applicant's request, it was noted the Assistant Secretary of the Army (Manpower and Reserve Affairs) directed he receive an "under honorable conditions (general) discharge."  On 9 May 2007, the HRC commander relayed that decision to the CG, U.S. Army Special Forces Command.  In executing the applicant's DD Form 214, the Transition Point at Fort Bragg erroneously characterized his service as honorable, not under honorable conditions (general).  Therefore, administrative action will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) to correct the applicant's DD Form 214 to reflect the characterization of service directed by the Assistant Secretary of the Army (Manpower and Reserve Affairs).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board determined an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that ARBA CMD administratively correct the records of the individual concerned to show an under honorable conditions (general) character of service for his DD Form 214 with effective date of 10 August 2007.



      ____________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)                                         AR20100020944



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ABCMR Record of Proceedings (cont)                                         AR20100020944



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