IN THE CASE OF:	  

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120002268 


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, that his retirement orders be corrected to show 25 years, 6 months, and 24 days of active Federal service (AFS) and to show his entitlement to ship household goods (HHG) and dependents to a designated location.  

2.  The applicant states, in effect, that when he received his retirement orders by mail they contained an error in that they showed he had only served 24 years, 11 months, and 18 days of AFS.  They were subsequently amended to show 24 years, 10 months, and 13 days of AFS and the orders made no provisions for him to move his HHG and dependents for his final move.  He goes on to state he contacted officials at the U.S. Army Human Resources Command (HRC) and provided orders showing he entered the Active Guard Reserve (AGR) Program on 1 February 1998 and he served on active duty until 1 April 2002.  Accordingly, officials at HRC issued a new DA Form 1506 (Statement of Service – for Computation of Length of Service for Pay Purposes) on 7 March 2011 to replace the DA Form 1506 issued on 9 February 2011.  However, when he requested that HRC amend his retirement orders, they indicated they would not do so unless directed and referred him to the Board.  Additionally, his retirement orders did not provide any provisions for him to make the final movement of his HHG and dependents.

3.  The applicant provides two DA Forms 1506, retirement orders, emails, Chronological Statement of Retirement Points, and a Service Computation for Retirement. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was a U.S. Army Reserve (USAR) chief warrant officer four (CW4) serving on active duty when he was convicted by a general court-martial on 28 March 2002.  He was sentenced to pay a fine of $50,000 or serve additional confinement of 2 years if the fine was not paid, a forfeiture of all pay and allowances, confinement for 22 months, and dismissal from the service.

2.  On 31 January 2006, the Army Criminal Court of Appeals (ACCA) affirmed only part of the findings of guilty, set aside the sentence, and ordered a rehearing of the sentence. 

3.  On 30 November 2006, during a rehearing of the sentence, the applicant was sentenced to pay a fine of $3,322.11 or serve an additional 6 months if the fine was not paid, a forfeiture of $5,811.00 pay per month for 108 months, and confinement for 42 months.  However, the convening authority approved only so much of the sentence as provided for confinement for 22 months and a forfeiture of $5,811.00 pay per month for 108 months. 

4.  On 20 January 2010, the United States Court of Appeals for the Armed Forces set aside and dismissed seven of the specifications and affirmed seven others.  It set aside the sentence and ordered a rehearing of the sentence.

5.  On 23 June 2010, during a rehearing of the sentence the applicant was sentenced to a forfeiture of all pay and allowances, confinement for 24 months, and dismissal from the service.  However, on 10 November 2010, the convening authority approved only so much of the sentence providing for confinement for  22 months, a forfeiture of $5,855.00 pay per month for 22 months, followed by a forfeiture of $3,855.00 pay per month for 86 months. 

6.  On 27 September 2011, the ACCA affirmed the findings and sentence as approved on 10 November 2010.

7.  The conviction became final on 18 January 2012 when the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for a grant of review.

8.  Meanwhile, on 9 February 2011, HRC published orders retiring the applicant effective 1 February 2011.  The orders indicated no travel was involved and that the applicant was credited with 24 years, 11 months, and 18 days of AFS.  His AFS coincides with a Service Computation for Separation prepared by HRC on 8 February 2011 and a DA Form 1506 prepared by HRC on 9 February 2011.  However, on 18 February 2011, HRC amended his retirement orders to show he completed 24 years, 10 months, and 13 days of AFS.

9.  On 7 March 2011, HRC issued a DA Form 1506 showing the applicant had completed 25 years, 6 months, and 24 days of AFS.  However, there is no evidence to show that his retirement orders or any other associated documents were corrected to reflect that service.

10.  In the processing of this case a staff advisory opinion was obtained from HRC which indicates a determination needs to be made regarding the applicant's creditable service given the unusual circumstances of his case.  The HRC representative further stated that until such a determination is made, the HRC will not amend his retirement orders unless directed to do so.  The advisory opinion was provided to the applicant for comment.  He responded to the effect that he has attempted to resolve the errors through HRC and has had no results in obtaining assistance from that agency.

11.  A review of the available records failed to reveal a DD Form 214 (Certificate of Release or Discharge from Active Duty) or any documents related to the applicant's entitlement to ship or move his HHG and/or dependents. 

DISCUSSION AND CONCLUSIONS:

1.  The advisory opinion from HRC has been noted.  HRC issued the DA Form 1506 on 7 March 2011 which indicates the applicant had served 25 years, 6 months, and 24 days of AFS.  Therefore, unless HRC can show that the DA Form 2506 is in error, it is HRC's responsibility to correct the applicant's retirement orders and all associated documents to reflect his correct AFS.

2.  Additionally, HRC should also either correct his retirement orders to show his entitlement to move his HHG and dependents or issue appropriate orders to that effect. 

3.  Given the delays that have occurred in this case, the applicant should be granted an extension of the period authorized to utilize his transportation entitlements. 



BOARD VOTE:

____X____  ____X____  _____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending his retirement orders to show that he served 25 years, 6 months, and 24 days of AFS and adjusting his retired pay, if applicable; 

	b.  amending his retirement orders to add the appropriate additional instructions showing his entitlement to move his HHG and dependents to a designated location; and

	c.  showing he requested an extension of his retirement travel and transportation entitlements through 1 February 2013 (he is responsible for requesting any further extensions).



      ____________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)                                         AR20120002268



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ABCMR Record of Proceedings (cont)                                         AR20120002268



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