IN THE CASE OF:	  

		BOARD DATE:  23 August 2012

		DOCKET NUMBER:  AR20110022256 


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, in effect, his undesirable discharge be upgraded to a general, under honorable conditions discharge, restoration of his rank/grade to sergeant first class (SFC)/E-7, and that his record be corrected to show he is fully eligible for retirement based upon his length of service with all benefits and entitlements due to a military retiree. 

2.  The applicant states, in effect, he believes his total active service for the purpose of retirement may be incorrect.  He further states, based on equity and his exemplary service record, he should be allowed to retire.  He states he was not given an opportunity by his assigned counsel to request a conditional discharge in lieu of the Administrative Separation Board (ASB) which may have resulted in him receiving a more favorable discharge which was initially recommended by the first officer in his chain of command.  He states his appeal to the commanding general to set aside the findings and recommendations of the ASB and allow him to be retained in service to retire was never responded to.  He further states his family was discriminated against when his dependents were evicted from government quarters and received no assistance from his unit as the result of his offense.

3.  The applicant provides:

* a self-authored statement
* an email
* page 5 of an information paper
* 2 memoranda
* Orders 257-0128
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 5 March 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  On 4 March 1984, after completing 2 years of active service, he was honorably released from active duty for expiration term of service and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his service obligation.  From 5 March 1984 through 23 May 1989, he attained 111 active duty points equating to 3 months and 21 days of active service. 

2.  On 24 May 1989, he enlisted in the RA.  He completed training and was awarded MOS 31B (Military Police).  The highest rank/grade he attained while serving on this period of active duty was SFC/E-7.  However, he held the rank/grade of private/E-1 at the time of his discharge.

3.  On 1 February 2007, he was apprehended and confined by the Western District of Texas, for knowingly, by means of a facility of interstate and foreign commerce, that is, by computer via the internet, attempt to persuade, induce, entice, and coerce an individual, who had not attained the age of 18 years, to engage in sexual activity for which a person could be charged with a criminal offense under the laws of the State of Texas, that is, the crime of indecency with a child, which would be a violation of the Texas Penal Code.

4.  On 5 April 2007, he pled guilty and was convicted by the U.S. District Court, Western District of Texas, Waco Division, for the civilian charge of coercion and enticement.  He was sentenced to 120 months imprisonment.

5.  On or about 10 June 2008, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of conviction by civil court.  He recommended a general, under honorable conditions discharge.

6.  On 10 June 2008, the applicant acknowledged receipt of the notification of the proposed action to discharge him by reason of conviction by civil authorities.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. 
7.  He further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He requested consideration of his case by an ASB, a personal appearance before the ASB, and elected to submit a statement on his own behalf.  

8.  On 18 August 2008, the applicant's senior commander recommended he be discharged under the provisions of Army Regulation 635-200, Chapter 14 Section II for Misconduct (Civil Conviction), with a characterization of service of under other than honorable conditions.  

9.  On 18 September 2008, the court-martial convening authority ordered an ASB convene to determine if the applicant should be discharged.

10.  On 18 November 2008:

	a.  the applicant’s defense counsel requested that the ASB be delayed for    30 days in order to gather data relevant to the potential loss of retirement benefits should he be separated.

	b.  the ASB adjourned finding the applicant was convicted by a civilian court.  The ASB recommended that the applicant be separated from active duty and receive an other than honorable discharge characterization of service.  The ASB further recommended the discharge not be suspended.

11.  On 8 December 2008, the applicant acknowledged receipt of the ASB’s findings and recommendations.

12.  On 3 April 2009, the court-martial convening authority recommended approval of the applicant’s discharge and that he receive a characterization of service of under other than honorable conditions.

13.  On 6 July 2010, a legal review of the ASB determined the proceedings complied with the legal requirements of Army Regulation 15-6 (Procedures for Investigating Officers and Board Officers) and Army Regulation 635-200.

14.  On 1 March 2011, the Assistant Secretary of the Army (Manpower and Reserve Affairs) directed the involuntary separation of the applicant with a characterization of service of other than honorable conditions.

15.  On 12 September 2011, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14 Section II for Misconduct (Civil Conviction), with a characterization of service of under other than honorable conditions.  He was issued a Separation Program Designator Code of JKB - Misconduct (Civil Conviction) and a Reentry Eligibility Code of 3.  He was credited with 17 years, 8 months, and 7 days net active service and 2 years,       3 months, and 21 days of prior active service.

16.  There is no evidence in the applicant's personnel service record nor did the applicant provide evidence which shows his family was discriminated against throughout the separation process as the result of his offense.

17.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

18.  Army Regulation 635-200 states any Soldier who has completed 18 or more years of active Federal service will not be involuntarily discharged or released from active duty without approval at HQDA level. 

19.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

20.  Title 10 U.S. Code, subsection 1176 provides that a regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of qualifying for retirement under section    


3914 of this title, shall be retained on active duty until the member is qualified for retirement unless the member is sooner retired or discharged under any other provision of law.

21.  Title 10 U.S. Code, subsection 1169 provides that no regular enlisted member of an armed force may be discharged before his term of service expires, except as prescribed by the Secretary concerned; by sentence of a general or special court martial; or as otherwise provided by law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his undesirable discharge be upgraded to a general, under honorable conditions discharge, restoration of his rank/grade to SFC/E-7, and that his record be corrected to show he is fully eligible for retirement with all benefits and entitlements due to a military retiree was carefully considered and determined to be without merit.

2.  Title 10 U.S. Code, subsection 1176 provides that a regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of qualifying for retirement under section    3914 of this title, shall be retained on active duty until the member is qualified for retirement unless the member is sooner retired or discharged under any other provision of law.

3.  Army Regulation 635-200 states any Soldier who has completed 18 or more years of active Federal service will not be involuntarily discharged without approval at HQDA level.  HQDA approved his involuntary discharge, and the law, as provided for in Title 10 U.S. Code, subsection 1169, gave the Secretary of the Army the authority to order his separation.

4.  It is duly noted that the applicant had well over 19 years of service at the time of his discharge.  However; the record shows he pled guilty and was convicted of the civilian charge of coercion and enticement.  He was sentenced to 120 months imprisonment.  Therefore, he was not entitled to sanctuary under the provisions of Title 10 U.S. Code, subsection 1176.  

5.  He requested consideration of his case by an ASB, a personal appearance before an ASB, and he elected to submit a statement on his own behalf.  An ASB subsequently convened and after considering the evidence before it, the board 


found he was convicted by a civilian court through a preponderance of evidence and the finding warranted separation.  Accordingly, the board recommended his separation from the Army with the issuance of an other than honorable discharge, in spite of his years of AFS.

6.  The evidence clearly shows the appropriate Department of the Army authority approved his discharge under the provisions of chapter 14 of Army Regulation 635-200 for misconduct due to his conviction.  This misconduct renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general under honorable conditions discharge.

7.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

8.  With respect to the applicant’s arguments:

   a.  The separation authority is not bound by the recommendation of a subordinate commander.  Nevertheless, after considering all the facts, the separation authority exercised his authority by approving the discharge.  He was under no regulatory or legal obligation to allow the applicant to retire.

	b.  The regulation stipulates that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under Chapter 
14 Section II for Misconduct (Civil Conviction).  The separation authority may direct a general discharge if such were merited by the Soldier's overall record.  It appears the ASB and the separation authority considered the applicant's overall career, years of service, and the heinous act he committed and pled guilty to while in the service of his country.  Accordingly, he received an under other than honorable conditions discharge.

	c.  The applicant's loss of a career and subsequent financial difficulties are a natural result of his misconduct.  Further, the applicant provided no evidence his family was ever discriminated against throughout the separation process as the result of his offense.

9.  The applicant's discharge was conducted to standard.  It was neither improper nor inequitable.  He was not denied due process.  As such, there is no reason to upgrade his discharge, reinstate him in the RA in the rank/grade SFC/E-7, or pay him any pay or allowances due to a military retiree.

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)                                         AR20110022256



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ABCMR Record of Proceedings (cont)                                         AR20110022256



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