IN THE CASE OF: 

		BOARD DATE:	        25 October 2012

		DOCKET NUMBER:  AR20120007891


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:

* his discharge date be changed to 24 June 2002, which is his original expiration term of service (ETS) date prior to his involuntary extension
* an upgrade of his discharge from under other than honorable conditions to an under honorable conditions (general) discharge
* restoration of his rank/grade to staff sergeant (SSG)/E-6

2.  The applicant states on 24 June 2002, which was his original ETS date, he had not yet been convicted of any crime – merely charged.  His commander waited until after his conviction, 6 months past his ETS date, to discharge him without just cause.  

3.  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.  On 7 November 1990, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 13M (Multiple Launch Rocket System Crewmember).  

3.  On 25 June 1998, he reenlisted for a 4-year term.

4.  Orders 138-637, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, dated 18 May 2001, promoted him to the rank/grade of SSG/E-6, effective 1 June 2001.

5.  On 25 March 2002, he was arrested by an officer of the Comanche County (Oklahoma) Sheriff's Office and placed in civil confinement.  

6.  On 26 September 2002, in the District Court of Comanche County, State of Oklahoma, he was convicted of the crimes of which he was accused.  The jury recommended that he receive two life sentences and two 10-year sentences.

7.  On 1 November 2002, he was sentenced in accordance with the jury's recommendations.

8.  On 1 November 2002, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – conviction by civil court.  On 1 November 2002, the applicant acknowledged receipt of the notification memorandum and waived consideration of his case by and personal appearance before an administrative separation board.  Additionally, he waived counsel and elected not to submit statements in his own behalf.

9.  On 1 November 2002, his commander recommended his discharge from the Army in accordance with Army Regulation 635-200, chapter 14, by reason of misconduct – conviction by civil court.

10.  On or about 21 November 2002, the separation authority approved his discharge due to misconduct and directed that he be given an under other than honorable conditions discharge.

11.  On 10 December 2002, he was discharged under the provisions of Army Regulation 635-200, chapter 14, and given an under other than honorable conditions discharge.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1.

12.  On 25 August 2010, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  Army Regulation 635-5 (Separation Documents) states that item 12 (Record of Service) should be completed using extreme care since post-service benefits, final pay, retirement credit, and so forth are based on this information.  Further, item 12b (Separation Date This Period) is the Soldier’s actual transition/separation date.  This date may not be the contractual date if Soldier is separated early, voluntarily extends, is extended for make-up of lost time, or is retained on active duty for the convenience of the Government.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It further sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

   a.  Paragraph 2-13 provides that when proceedings have been initiated against a Soldier who is absent without leave or confined by civil authorities, the case may be processed in his/her absence.  It states:

       (1)  A Soldier held in custody by civil authorities does not accrue service creditable for completion of his/her period of enlistment, or order to active duty, except for any period in which he/she was in an authorized leave status or when the Soldier's commander determines per Army Regulation 630-10 (Absence Without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) that the time spent in the custody of civil authorities should not be considered as lost time.  Upon return to military control, a Soldier’s ETS will be recomputed.

       (2)  When a Soldier's term of service has expired, the Soldiers separation will be accomplished within 5 days of his/her return to military control and the Soldier will be regarded as having been retained in service for the convenience of the Government.

   b.  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.  
   c.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, 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.  

15.  Title 10, U.S. Code, section 972 (Enlisted Members Required To Make Up Time Lost) states that an enlisted member of an armed force, who is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial, is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change of his discharge date, an upgrade of his under other than honorable conditions discharge, and restoration of his rank was carefully considered; however, there is insufficient evidence to support this request.

2.  He contends his discharge date should be changed to coincide with his original ETS date of 24 June 2002.  The evidence of record shows he was arrested and confined by civil authorities on 25 March 2002; therefore, his service between 25 March 2002 and 24 June 2002 was not creditable towards the completion of his contractual service obligation and required the recomputation of his ETS date upon his return to military control.  Accordingly, his extension beyond his contractual ETS date was proper and warranted.  

3.  The evidence further shows he was sentenced on 1 November 2002 in accordance with the jury's recommendations in a civil conviction.

4.  His administrative separation under the provisions of Army Regulation 
635-200, chapter 14, was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he was advised of the basis for the separation action and he waived consultation with counsel.

5.  Based on his record of indiscipline, including misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a discharge upgrade or restoration of his previous rank.
6.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20120007891



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