IN THE CASE OF:	

		BOARD DATE:	  15 March 2012

		DOCKET NUMBER:  AR20110008294 


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:

* his rank be reinstated to staff sergeant (SSG)/E-6
* he be retired, or given more separation pay in effect, full separation pay)

2.  The applicant states he served 17 years and 11 months in the U.S. Army and he was separated because he failed consecutive Army Physical Fitness Tests (APFT).  He learned that his chain of command was in the process of issuing him at chapter 13 but decided to issue him a chapter 18.  The applicant states that his lawyer informed him that he would speak with his chain of command to change his discharge to a chapter 18.  His unit agreed to do so on the condition that he waives his rights to a board of officers.

3.  The applicant states he was depressed and drank excessively, and then one morning he was found to be drunk on duty.  He received a Field Grade Article 15 for his misconduct and reduced to the rank of Sergeant (SGT)/E-5.  He served his country with honor and the only infraction he had was the Article 15 under the Uniform Code of Military Justice (UCMJ).  He received three Army Commendation Medals and an Army Achievement Medal for his service.  He served a tour in Bosnia during Operation Joint Endeavor during his period of 




service.  The applicant states that he received neither a Relief for Cause Noncommissioned Officer Report nor a PQM (Quality Management Program) during his entire service.  He concludes that it has been 9 years since his discharge, but chronic depression had disabled him until recently.

4.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 enlisted in the Regular Army on 25 January 1984.  He initially trained as an Avenger System Repairer.  He had completed several military courses, to include the Basic Noncommissioned Officer Course (BNCOC) and Primary Leadership Development Course and he had been awarded three Army Commendation Medals, the Army Achievement Medal, and five awards of the Army Good Conduct Medal, among other service medals, ribbons and badges.

3.  On 1 January 1994, he was promoted to SSG/E-6.  On 18 November 1999, he was assigned to Headquarters and Headquarters Company, 19th Support Command, Wiesbaden, Germany.

4.  Part IVc (Values/NCO Responsibilities) of the applicant’s DA Form 
2166-7 (NCO Evaluation Report (NCOER)) for the period May 1999 through October 1999 shows the applicant failed his APFT in Oct 1999.  His rater indicated that the applicant was making progress in the weight control program.






5.  The applicant’s NCOER for the period November 1999 through October 
2000 is not available in his military service records.

6.  Part IVc of the applicant’s DA Form 2166-7 for the period November
2000 through July 2001 shows the applicant failed his APFT in January 2001 and at 67 inches tall, he weighed 174 pounds [overweight].  His rater indicated the applicant was not making progress in the weight control program.  The rater further stated, “continuously fails the run on the physical fitness test and has made little or no improvement in his physical condition.” 

7.  On 31 October 2001, the applicant was notified by his commander a lieutenant colonel (LTC)/O-5, that he was considering whether the applicant should be punished under Article 15, UCMJ, for being intoxicated at his place of duty and operating a vehicle while intoxicated on 17 October 2001.

8.  On 2 November 2001, the applicant elected not to demand a trial by 
court-martial, and instead chose for the matter to be handled by this commander under NJP provisions of the UCMJ at a closed hearing.  

9.  On 5 November 2001, the applicant’s commander indicated that after having considered all matters presented in defense, mitigation and/or extenuation at a closed hearing he imposed the following punishment:  

* reduction to SGT/E-5
* forfeiture of $1,020.00 per month for two months (suspended to be automatically remitted if not vacated before 1 May 2002)
* 45 days extra duty (suspended, to be automatically remitted if not vacated before 1 May 2002)

10.  On the same day, the applicant elected to appeal the punishment imposed and did not submit additional matters.  

11.  On 7 November 2001, the applicant’s appeal was reviewed by a Judge Advocate and in his opinion the proceedings were conducted in accordance with the law and regulation and the punishments were neither unjust nor disproportionate to the offenses committed.  






12.  On 13 November 2001, the Commander of the 3rd Combat Support Command a brigadier general (BG), denied the applicant’s appeal.

13.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 show that he was a SGT/E-5 with 17 years, 10 months, and 10 days of creditable active service.  He was discharged on 5 December 2001 under the provisions of chapter 18 of Army Regulation 635-200 (Personnel Separations) weight control program, with a characterization of service of honorable.  Item 
18 (Remarks) shows the entry “SEPARATION PAY-$21484.53” (for half separation pay). 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 18 establishes policy and prescribes procedures for separating Soldiers who fail to meet the body fat standards set forth in Army Regulation 600–9 are subject to involuntary separation per this chapter when such condition is the sole basis for separation.  Separation proceedings may not be initiated under this chapter until the Soldier has been given a reasonable opportunity to meet the body fat standards, as reflected in counseling or personnel records.  The service of those separated per this chapter will be characterized as honorable, unless an uncharacterized description of service is required for Soldiers in entry-level status.

15.  Army Regulation 635-200 sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (Active Army, Army National Guard, and U.S. Army Reserve) who are retiring in their enlisted status.  Chapter 12 states that a Soldier who has completed 20 but less than 30 years of active federal service in the U.S. Armed Forces may be retired at his or her request.  The Soldier must have completed all required service obligations at the time of retirement.

16.  Title 10, U.S. Code (USC), section 1174, states that "a regular enlisted member of an armed force who is discharged involuntarily or as a result of the denial of the reenlistment of the member and who has completed 6 or more but less than 20 years of active service immediately before that discharge is entitled to separation pay completed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay."  





17.  Department of the Army Circular 635-92-1 (Separation Pay) outlines the eligibility criteria and computation procedures for separation pay.  It states, in pertinent part, that one-half separation pay is authorized for Soldiers who are not fully qualified for retention and are denied continuation upon the expiration of their term of service.  It further states that service must be active military service in a Regular or Reserve component in order to qualify for service under the separation pay computation formula. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank should be reinstated to SSG/E-6.  
Evidence of record shows the applicant was reduced in grade to SGT/E-5 under Article 15, UCMJ, for being intoxicated at his place of duty and operating a vehicle while intoxicated.  There is no evidence and the applicant has not provided evidence to show his punishment was unjust or disproportionate.  The applicant appealed the punishment of the Article 15 and the appeal was denied.  His reduction as a result of his UCMJ action was appropriate.

2.  In accordance with Chapter 12 of Army Regulation 635-200 a Soldier who has completed 20 but less than 30 years of active federal service in the U.S. Armed Forces may be retired at his or her request.  The applicant’s DD Form 214 shows he completed 17 years, 10 months, and 10 days of creditable active service.  The applicant’s records show that he did not meet the 20-year requirement to retire. Therefore, he was not entitled to be retired.

3.  The applicant contends that he should have received full separation pay when he was discharged from the Army.  Evidence of record clearly shows that the applicant was referred to the Army weight control program.  As an NCO, the applicant should have been aware of the body fat standards.  He had from May 1999 to July 2001 to pass the APFT and meet the height/weight standards.  The applicant was involuntarily separated on 5 December 2001 for failing the Army’s weight control program.  By regulation, this mandated that he be discharged from the Army.  The reason for his discharge made him ineligible for full separation pay.  

4.  In the absence of evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has established no basis to support his 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 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)                                         AR20110008294





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ABCMR Record of Proceedings (cont)                                         AR20110008294



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