BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120003546 


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 correction of his record to show he was retired for length of service rather than being dishonorably discharged.

2.  He states:

	a.  he had 21 years and 3 months active military service (Air Force and Army) at the time of his general court-martial.

	b.  he requests his dishonorable discharge be upgraded for retirement purposes.

	c.  according to Title 5, U.S. Code (USC), chapter 83, section 8312, subpart G, there are certain offenses against the United States that prohibit the payment of retired pay, of which he was not convicted.

	d.  he references the Department of Defense Financial Management Regulation (DODFMR), Volume 7B, which states any service that is over 20 years and is considered creditable service is eligible for retired pay.

3.  He provides:

* Title 5, USC, section 8312
* DODFMR extract 
* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* General Court-Martial Order Number 70, dated 6 September 2007
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 served in the Air Force from 15 August 1984 to 8 March 1988 and was transferred to the U.S. Air Force Reserve.  He enlisted in the Regular Army on 6 September 1988 and continued to serve on active duty through a series of reenlistments.  

3.  On 9 May 2006, the applicant was convicted pursuant to his pleas by a general court-martial of three specifications of committing an indecent act upon the body of C.S., a female under 16 years of age, not his wife and one specification of knowingly and wrongfully possessing a Dell desktop hard drive, containing digital images of child pornography.  He was sentenced to confinement for eight years and to be discharged from the service with a dishonorable discharge.  

4.  On 27 October 2006, the court-martial convening authority approved the sentence and ordered it to be executed, except for that part of the sentence extending to a dishonorable discharge.  The automatic forfeitures of all pay were deferred effective 10 May 2006 and was terminated this date.  The forfeiture of all pay and allowances required by Article 58b, Uniform Code of Military Justice (UCMJ), was waived effective 27 October 2006 until 27 April "2006."

5.  On 10 April 2007, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  The applicant filed a petition for grant of review of the decision of the U.S. Army Court of Criminal Appeals.  The petition was denied on 31 July 2007.  On 18 September 2007, the U.S. Army Court of Criminal Appeals corrected General Court-Martial Order Number 34, Headquarters, Fort Campbell Installation, Fort Campbell, KY, dated 27 October 2006, to reflect in line six of the Action paragraph the correct dates as "27 October 2006 until 27 April 2007.”  On 6 September 2007, the dishonorable discharge was ordered to be executed.
6.  On 27 November 2007, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3 as a result of court-martial with the issuance of a dishonorable discharge.  He completed 17 years, 8 months, and 3 days of creditable active service during the period under review and a total of 21 years, 2 months, and 25 days creditable active service.  He had over 500 days of lost time.

7.  The applicant provides:

   a.  an extract from DODFMR, Volume 7B, Chapter 1 (Initial Entitlements – Retirements), section 0101 provides guidance for service creditable for retirement purposes.  Subparagraph 010101 states, in part, an enlisted member of the Army or Air Force who retires upon completion of 20 years of creditable service becomes a member of the Reserve force.  A member who continues on active duty after completion of 20 years of service may be retired for voluntary or involuntary reasons.  Service creditable for the purpose of determining retirement eligibility varies with each type of retirement.  Subparagraph 010102 lists the service creditable for voluntary retirement for enlisted members.
   
   b.  an extract from Title 5, USC, section 8312 provides historical notes, references, and annotations on conviction of certain offenses.  It states retired pay would not be paid to an individual if convicted, before, on, or after               26 September 1961, of an offense named by subsection (c) of this section.  The following are the offenses:

   a.  section 2272, (violation of specific sections) or 2273 (violation of sections generally of chapter 23 of title 42 (The Public Health and Welfare)), as the offense is committed with intent to injure the United States or with intent to secure an advantage to a foreign nation; 
   
   b.  section 2274 (communication of restricted data), 2275 (receipt of restricted data), or 2276 (tampering with restricted data) of title 42; or 
   
	c.  section 783 (conspiracy and communication or receipt of classified information) of title 50 (Government Organization and Employees) or section 601 of the National Security Action of 1947 (50 USC 421) (relating to intelligence identities);

	d.  an offense within the purview of a current article of the UCMJ (chapter 47 of title 10) or an earlier article on which the current article is based, on the basis of charges and specifications describing a violation of a statute named by paragraph (1), (3), or (4) of this subsection, if the executed sentence includes death, dishonorable discharge, or dismissal from the service, or if the defendant dies before execution of that sentence as finally approved; 

	e.  perjury committed under the statutes of the United States or the District of Columbia in falsely denying the commission of an action which constitutes an offense within the purview of a statute name by paragraph (1) of this subsection; and

	f.  subornation of perjury committed in connection with the false denial of another individual as specified by paragraph (3) of this subjection.  

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-10 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

9.  Army Regulation 635-200, chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (Active Army, ARNGUS, and USAR) who are retiring in their enlisted status.  Soldiers who have completed 20 but less than 30 years of active Federal service (AFS) and who have completed all required service obligations are eligible, but not entitled, to retire upon request.  

10.  Title 10, U.S. Code, section 3914 contains the legal authority for voluntary retirement of enlisted members with 20 or more, but less than 30 years, of active military service.  It states that under regulations prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of active military service, upon his request, may be retired.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he has 21 years and 3 months active military service at the time of his general court-martial.  However, no Soldier who has served less than 30 years on active duty is guaranteed retirement.  

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  The ABCMR does not amend/or correct military records solely for the purpose of making the applicant eligible for retirement benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.  The applicant did not submit any evidence that would satisfy this requirement.  

4.  Based on the seriousness of the misconduct for which the applicant was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the requested relief.

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)                                         AR20120003546





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ABCMR Record of Proceedings (cont)                                         AR20120003546



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