IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100021195 


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 reconsideration of her earlier petition requesting reinstatement of her rank to sergeant first class (SFC)/E-7, effective 6 May 2003, and all back pay and allowances due as a result.  She additionally requests a length of service retirement based on completion of 20 years of service with all associated benefits.

2.  The applicant states her retirement was unjustly denied even though authorized by the regulation in effect in 2000, and as a result her command court-martialed her twice within a 10-month period.

3.  The applicant also states, in a letter to the Secretary of the Army (SA), that the SA should direct the Army Board for Correction of Military Records (ABCMR) to reactivate her application to the Board.  In the letter, she claims she provided documents validating unwarranted injustice that ruined her career.  She further states she has contacted the ABCMR four times and it is now the problem.  She also states she was not provided the official document used to reduce her in rank and that she was unhappy with the response from the ABCMR which did not include the official reduction document requested.   

4.  The applicant provides:

* a self-authored letter to the ABCMR, dated 23 October 2005
* a self-authored letter to a Member of Congress, dated 7 May 2008
* self-authored letters to the SA, dated 25 August and 2 October 2010


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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20050011914 on 4 May 2006.

3.  The applicant's record shows she initially enlisted in the Regular Army on
4 November 1983.  She was promoted to the SFC/E-7 on 1 June 1994, and this is the highest rank/grade she attained while serving on active duty. 

4.  On 8 October 2002, while the applicant was serving as an SFC/E-7 at Fort Eustis, VA, she was placed on assignment instructions to Fort Leonard Wood, MO.  At the time she had completed 18 years, 11 months, and 5 days of active military service.

5.  Permanent change of station (PCS) orders were published at Fort Eustis on
20 November 2002 directing the applicant’s reassignment to Fort Leonard Wood, with a reporting date of 3 January 2003.  

6.  The applicant submitted a request for retirement in lieu of PCS and on 
27 January 2003, the Chief, Retirements and Separations Branch, U.S. Army Total Army Personnel Command (PERSCOM), disapproved the applicant's request.  The PERSCOM official stated the applicant was not eligible for retirement in lieu of PCS when assignment instructions to Fort Leonard Wood were issued and, moreover, the strength at the gaining installation did not support her deletion from the assignment.  The official further indicated the applicant also failed to sufficiently document compelling compassionate reasons to gain approval of an exception to policy to approve her request for retirement in lieu of PCS.

7.  A special court-martial (SPCM) held at Fort Eustis on 5 and 6 May 2003 found the applicant guilty for violating Article 90 of the Uniform Code of Military Justice (UCMJ) by twice failing to obey lawful commands from commissioned officers and for violating Article 107 of the UCMJ by making a false official statement.  The resulting approved sentence was a reduction to specialist (SPC)/E-4), forfeiture of $912.00 of pay per month for 12 months, and hard labor without confinement for 3 months.

8.  An SPCM held at Fort Eustis on 2 and 3 March 2004 found the applicant guilty of violating Article 90 of the UCMJ by twice willfully disobeying orders from a superior commissioned officer; violating Article 91 of the UCMJ by willfully disobeying a lawful order; and violating Article 134 of the UCMJ by wrongfully and willfully impersonating a noncommissioned officer.  The resulting approved sentence was reduction to private (PV1)/E-1 and confinement for 90 days.

9.  The applicant’s record shows her command processed her for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations)), chapter 14, by reason of misconduct; and that the separation authority ultimately recommended her separation for misconduct.  It further shows the separation proceedings were forwarded to Headquarters, Department of the Army (HQDA) for a final determination and that on 15 March 2005, after review by the Assistant Secretary of the Army (Manpower and Reserve Affairs (ASA, M&RA)).  HQDA approved the applicant’s separation for misconduct and directed issuance of a general discharge.  

10.  On 29 March 2005, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct, with a general discharge.  The DD Form 214 issued to the applicant at the time shows she held the rank/grade of PV1/E-1 and she had completed 21 years, 4 months, and 26 days of total active service at the time of her discharge. 

11.  On 12 September 2005, the Office of the Judge Advocate General (OTJAG) completed a review of the applicant's court-martial under the provisions of Article 69 of the UCMJ.  After reviewing the record and considering all arguments raised by the applicant in her request for relief, an attorney from the OTJAG Criminal Law Division, acting on behalf of The Judge Advocate General (TJAG), determined the court-martial findings pertaining to the applicant were correct in law and fact and denied the applicant’s request for relief under Article 69(b) of the UCMJ.


12.  On 7 October 2005, the Army Discharge Review Board (ADRB) determined the applicant's discharge was proper and commented that it did not condone the applicant's misconduct.  However, the ADRB did find the applicant's discharge inequitable based on the overall length and quality of her service, and it voted to change the character of her service to honorable and the reason for the discharge to Secretarial Authority. 

13.  On 4 May 2006, this Board denied the applicant’s request for reinstatement in the Army and to the rank of SFC/E-7 with all back pay and allowances due as a result.

14.  During its 2006 review, the ABCMR concluded the underlying basis for the applicant’s request was her contention that she was eligible for and should have been approved for retirement in lieu of PCS at the time she was notified of her assignment to Fort Leonard Wood.  However, at the time she was notified of her reassignment, she had not completed the 19 years and 6 months of active duty service required by the governing regulation to qualify for retirement in lieu of PCS.  

15.  Army Regulation 635-200 prescribes the Army’s enlisted administrative separation policy.  Paragraph 1-19 contains guidance on the disposition of proceedings and records.  It states if the separation authority recommends involuntary separation of a Solider with 18 or more years of active service, the proceedings with complete documentation and the recommendation of the separation authority will be sent to HQDA for final determination.

16.  Chapter 12 of the same regulation provides the policy for retirement for length of service.   It states a Soldier who has completed 20 but less than
30 years of active federal service (AFS) in the U.S. Armed Forces may be retired at his/her request.  It further stipulates that Soldiers who have completed 20 but less than 30 years of AFS and who have completed all required service obligations are eligible, but not entitled, to retire upon request.  

17.  Paragraph 12-9 of the same regulation provides guidance on retirement in lieu of PCS.  It states that a Soldier having 19 years and 6 months or more of AFS when notified of PCS may request retirement.

18.  Article 69 of the UCMJ provides for court-martial reviews by the OTJAG.  Subsection B states the findings or sentence, or both, in a court-martial case may be modified or set aside, in whole or in part, by TJAG on the ground of newly 


discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence. If such a case is considered upon application of the accused, the application must be filed in the OTJAG by the accused on or before the last day of the 2-year period beginning on the date the sentence is approved under section 860(c) of this title (article 60(c)), unless the accused establishes good cause for failure to file within that time.

19.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that she should be reinstated to SFC/E-7, effective 6 May 2003, with all back pay and allowances due as a result has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

3.  In this case, the evidence of record shows a review of the court-martial findings on the applicant was completed by OTJAG and it was determined these findings were correct in law and fact.  As a result, OTJAG denied the applicant's request for relief under Article 69b of the UCMJ.  Absent any evidence of error or injustice related to the court-martial process and given the gravity of the offenses resulting in her court-martial convictions, the applicant's overall record of service is not sufficiently meritorious to support clemency in the form of reinstatement of her rank with associated back pay and allowances as requested.

4.  The applicant's request to be granted a 20-year length of service retirement has also been carefully considered.  However, by law and regulation, length of service retirement based on completion of 20 but less than 30 years of AFS is not an entitlement.  Retirement must be requested and is authorized at the pleasure of the Secretary of the Army or his designee.  

5.  In this case, the applicant was clearly not eligible to retire in lieu of PCS at the time she was originally notified of her reassignment to Fort Leonard Wood, and it is clear that HQDA denied her request for an exception to policy to retire in lieu of PCS based on finding insufficiently compelling compassionate reasons to support the request.  Further, based on her completion of more than 18 years of AFS, the applicant's separation packet with the recommendation for discharge with a GD by the separation authority was forwarded to HQDA for a final determination of discharge.  After a review of the case by the ASA, M&RA, the applicant's discharge was determined to be appropriate and was finally approved by HQDA.

6.  Notwithstanding the equity relief provided by the ADRB, absent any evidence of error, injustice, or impropriety in the discharge process and based on the applicant's proven misconduct, as evidenced in her two court-martial convictions, there is an insufficient evidentiary basis to support approval of the
20-year length of service retirement she requests.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20050011914, dated 4 May 2006.



      __________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)                                         AR20100021195



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ABCMR Record of Proceedings (cont)                                         AR20100021195



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