BOARD DATE: 31 May 2012
DOCKET NUMBER: AR20110024088
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 that her records be corrected to show she was retired in the pay grade of E-7 due to sufficient service for retirement.
2. The applicant states that she had over 22 years of honorable service with no adverse actions prior to being court-martialed and should have been retired by reason of length of service. She further states that she was unaware of the injustice until she was released in 2010 and contacted an outreach ministry.
3. The applicant provides a copy of her chronological statement of retirement points and copies of her DD Forms 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 applicants 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 applicants 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 2 September 1981 and served on active duty through a series of continuous reenlistments until she was honorably discharged in the pay grade of E-5 on 10 September 1996. She had served 15 years and 9 days of active service.
3. The applicant enlisted in the U.S. Army Reserve on 11 September 1996 and continued to serve through a series of continuous reenlistments. She was promoted to the pay grade of E-6 on 1 January 2003.
4. The applicant was serving at Fort Irwin, California in the Active Guard Reserve (AGR) program when she was convicted by a general court-martial of killing a man by stabbing him in the chest with a knife. She was sentenced to 13 years of confinement, reduction to pay grade E-1 and a dishonorable discharge. However, the convening authority approved only so much of the sentence pertaining to 10 years of confinement, reduction to pay grade E-1 and a dishonorable discharge.
5. On 19 July 2007, orders were published at Fort Sill, Oklahoma indicating that the applicants court-martial conviction had been affirmed and directed that her dishonorable discharge be executed.
6. On 7 September 2007, the applicant was discharged pursuant to a duly affirmed court-martial conviction.
7. Army Regulation 635-200, in effect at the time, provided, pertinently, that an enlisted member who had completed 20 years but less than 30 years of active Federal service in the Armed Forces may at the discretion of the Secretary of the Army be retired at his or her request in accordance with Title 10, U.S Code, section 3914. It also provides that enlisted members must be on active duty and serving honorably when they are retired by reason of length of service.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that she should have retired by reason of length of service was considered and appears to lack merit.
2. At the time of the applicant's court-martial conviction she was not eligible for retirement because she was under a suspension of favorable personnel actions. Once she was convicted she was no longer eligible for retirement. The issuance of the dishonorable discharge extinguished her right to apply for retirement. An individual must be serving honorably at the time of retirement. Once she was discharged, she was ineligible to apply for retirement because an individual must be on active duty in good standing in order to apply for retirement and must be on active duty the day prior to retirement. Accordingly, she is neither eligible for nor entitled to be retired by length of service.
3. Accordingly, there appears to be no basis to grant the applicants request for retirement.
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) AR20110024088
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ABCMR Record of Proceedings (cont) AR20110024088
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