IN THE CASE OF:	  

		BOARD DATE:	  12 November 2013

		DOCKET NUMBER:  AR20130005090 


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 length of service retirement be reinstated.

2.  The applicant states he served honorably from 21 June 1978 to 24 July 1998 and was notified by the Retirement Services Office at Fort Bragg, North Carolina that his name was on the retirement rolls. 

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty) and his original retirement orders.

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 enlisted in the Regular Army on 21 June 1978 for 4 years.  He successfully completed his training as a light wheel vehicle mechanic and  remained on active duty through a series of continuous reenlistments.  He was promoted through the ranks to the pay grade of E-6.  He last reenlisted on 25 October 1990 for 6 years and on 24 July 1996 he extended his enlistment for 21 months, making his ETS 24 July 1998.

3.  On 1 April 1996, the applicant was arrested by civil authorities for the crime of "indecent liberties with a minor" (his 11-year old stepdaughter.)  On 10 May 1996, after a thorough investigation was conducted, the Chairperson, Case Review Committee, Womack Army Medical Center, determined that the allegation was substantiated.

4.  An investigation was conducted by the 87th Military Police Detachment, U.S. Army Criminal Investigation Command (CID), Fort Bragg, North Carolina.  According to the special agent, the incident was reported to the CID on 19 December 1996 by the Cumberland County Sheriff's Office, Fayetteville, North Carolina.  The investigation established probable cause to believe the applicant committed the offenses of indecent liberties with a child, first degree statutory rape, and felony child abuse.  The applicant's commanding officer (CO) was briefed on the status of the investigation on 7 January 1997.

5.  At the request of his CO, the applicant's records were flagged effective 4 February 1997 due to adverse action.

6.  The available records indicate that a bar to reenlistment was initiated against the applicant on 9 July 1997, that he submitted a request for retirement on 21 July 1997, and that the bar to reenlistment was approved on 15 September 
1997.  The applicant's CO recommended disapproval of his request for retirement on 2 October 1997.

7.  On 1 November 1997, the applicant's CO was advised not to process the applicant's request for retirement since it would not be approved by Personnel Services.  On or about 18 March 1998, while his CO was on leave, the applicant's request for retirement was processed through the brigade to Personnel Services and it was approved.

8.  On 26 March 1998, Orders 085-0316 were published releasing the applicant from active duty effective 30 June 1998 and placing him on the Retired List effective 1 July 1998.

9.  On 5 June 1998, the applicant, as part of a plea arrangement, pleaded guilty to indecent liberties with a child and to felony child abuse.  He agreed to a suspended sentence of 60 months with supervised probation.  The condition of his probation included electronic house arrest for 6 months (during which he was not to have any contact with the victim or his family) and child sex offender conditions of probation as set out in the statute.  His probation was to last for a period of 5 years.

10.  On 26 June 1998, the applicant's CO was notified by the Chief, Retirements and Separation Branch, that his approved retirement was suspended and that the retirement orders would be revoked or rescinded as appropriate.  The notification states that the approved retirement would remain in effect and upon completion of an investigation the applicant would be retired on the first day of the month following the month that charges are dismissed.

11.  On 29 June 1998, the applicant was notified that action to eliminate him from the Army under the provisions of Army Regulation 635-200, chapter 14, had been initiated.  The applicant's CO cited his conviction by civil authorities for indecent liberties with a child and felony child abuse as a basis for his recommendation.  The applicant was advised of his right to a hearing before an administrative board and of his right to consult with counsel.  He was told that any statements he desired to submit in his own behalf must be submitted within 7 duty days after he received his notification, unless an extension was granted.

12.  The applicant acknowledged receipt of the notification of intent to initiate action to eliminate him from the Army on 7 July 1998.  The available records indicate that on 10 July 1998 he made an election to appear before an administrative separation board and he retained civilian counsel on 15 July 1998 to represent him in his administrative discharge proceedings.

13.  On 14 July 1998, the commanding general (CG) notified the appropriate authorities that he had reviewed the applicant's proposed discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, due to the commission of a serious offense and he directed that the case be referred to the XVIII Airborne Corps Standing Administrative Separation Board.  The CG further directed that the applicant's case take priority over all other duties of those currently on the Standing Administrative Separation Separation Board.  The CG directed that due to overriding circumstances, per Army Regulation 635-200, paragraph 2-10, the 15-day waiting period would be modified to be no more than a 2-day waiting period and that the board would convene as rapidly as possible.  The CG stated that the applicant would be provided a copy of his notification.

14.  On 15 July 1998, the applicant was notified to appear before a board of officers on 17 July 1998 to determine whether he should be discharged due to his conviction by civil court before his ETS.  He was informed that if he failed to appear before the board due to being absent without leave, he may be discharged from or retained in the service by the separation authority without a personal appearance before the board.

15.  In a memorandum dated 15 July 1998, the applicant's counsel (Judge Advocate Senior Defense Counsel) notified his CO that he was in receipt of the notification to the applicant regarding the proposed administrative elimination action.  Counsel stated that the notification asserted that due to "overriding circumstances," per Army Regulation 635-200, paragraph 2-10, the 15-day waiting period would be modified to be no more than a 2-day waiting period.  Counsel stated that Army Regulation 635-200, paragraph 2-10a, provides that a Soldier under military control will be notified in writing of the convening date of the board at least 15 days before the hearing to allow the Soldier and the appointed counsel time to prepare the case.  Counsel further stated that Army Regulation 635-200, paragraph 2-10a, further provides that when, for overriding reasons, the minimum of 15 days cannot be granted, the president of the board will ensure that the reason for acting before that time is fully explained.  Counsel stated that his client had not been notified of any overriding circumstances, thus he would be unable to challenge such assertion before the president of the board if such reason is considered inadequate.

16.  In the memorandum, counsel requested that the applicant's CO state with specificity the overriding circumstances that existed to convene a board against a Soldier who had 19 years, 11 months, and 21 days of service.  He stated that giving the applicant only 2 days notice was unreasonable given the following facts:  the seriousness of the allegations; the command had been aware of the allegations and had supporting documents regarding the allegations since April 1996; the applicant's conviction pursuant to a plea (resulting in probation) occurred on 5 June 1998; the command took 6 weeks to notify the applicant of its actions; his office was currently short two attorneys and the others were currently working on court-martial cases; the board may attempt to deny his client his retirement benefits; the mitigating circumstances associated with the civil conviction; the facts and evidence which needed to be gathered; and the impact an adverse board ruling would have on the long-term financial well-being of the applicant.  In the memorandum, counsel went on to explain why a 2-day notice of board proceedings was improper and why he would be unable to meet the proposed hearing date.

17.  On 17 July 1998, a board of officers convened to determine whether the applicant should be discharged from the Army due to his conviction by a civil court.  The applicant was represented by his military-appointed and his civilian 


attorneys.  The board found that he had been convicted by a civilian court of the offenses of indecent liberties with a child and felony child abuse, offenses for which a punitive discharge is authorized under the Uniform Code of Military Justice or for which the applicant was sentenced to more than 6 months of confinement.  The board recommended that the applicant be discharged from the Army due to his conviction by a civilian court and that he be given an under other than honorable conditions discharge.

18.  The Judge Advocate, Chief, Administrative Law Division, reviewed the administrative board proceedings on 17 July 1998, and she determined that the proceedings were legally sufficient and they complied with legal requirements.  She also determined that sufficient evidence supported the findings of the board and that the recommendations were consistent with the findings.  The Judge Advocate, Chief, Administrative Law Division, stated the respondent objected to the fact that the board was convened 2 days following the notification to appear before a board.  She stated that the record of proceedings contains a full explanation of the reason why the proceedings were conducted prior to the       15-day minimum, and that when the board president determines that overriding reasons make it necessary to deny the respondent 15 days of notice of a board the decision of the president is subject to overrule by the convening authority.  The Judge Advocate, Chief, Administrative Law Division, stated that when the board was convened, the determination was made that overriding reasons necessitated denial of the 15-day notice of the board.  The Judge Advocate, Chief, Administrative Law Division, noted that in correspondence and during the proceedings the applicant's counsel objected to the determination.

19.  The applicant's counsel acknowledged receipt of the notification on 20 July 1998 and he indicated that he did not have time to review the applicant's packet.  Counsel stated that he was only acknowledging receipt of the notification and he needed more time to read the packet and to file any objections.

20.  On 24 July 1998, the applicant's CO was notified that the Assistant Secretary of the Army for Manpower and Reserve Affairs carefully considered and approved the recommendation to discharge the applicant from the Army under the provision of Army Regulation 635-200, chapter 14, paragraph 14-5.  The Assistant Secretary of the Army for Manpower and Reserve Affairs directed the issuance of a discharge under other than honorable conditions, a JKB separation program designator code, an RE-4 code, and a reduction to the lowest enlisted grade in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions).



21.  Accordingly, on 24 July 1998, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, 
chapter 14-5a, for misconduct based on his conviction by civil authorities.  He was reduced to the pay grade of E-1, given an RE-4 code, and assigned a JKB separation program designator code.  He had completed 20 years, 1 month, and 4 days of net active service.

22.  On 27 September 2006, the applicant petitioned the ADRB for an upgrade of his discharge.  On 2 July 2007, the ADRB voted to grant relief in the form of upgrading the characterization of his service to general under honorable conditions and restoring him to the rank and pay grade of staff sergeant (E-6).  The ADRB determined the characterization of the applicant's service was too harsh, and as a result is now inequitable.  The ADRB further determined that the overall length and quality of the applicant's service and his post-service accomplishments mitigate the discrediting entries in his service record.  The ADRB determined that the reason for discharge was both proper and equitable; therefore, his narrative reason for separation was not changed.  

23.  Although the ADRB directed that his discharge be upgraded to a general discharge and that his rank be restored to the pay grade of E-6, it appears that an administrative error occurred at the Board’s support staff office in St. Louis, Missouri and instead of issuing the applicant a new DD Form 214 with a characterization of under honorable conditions and General Discharge Certificate, the applicant was issued a DD Form 214 showing his characterization as Honorable and he was issued an Honorable Discharge Certificate. 

24.   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, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  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 considered appropriate.

25.  Army Regulation 635-200, in effect at the time, stipulated that an enlisted member who had completed 20, 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 of the Regular Army must be on active duty when they are retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was originally approved for a length of service retirement to be effective 1 July 1998; however, prior to that date he pled guilty in civil court to charges of taking indecent liberties with a child and to felony child abuse and was sentenced on both counts.

2.  Accordingly, his retirement was revoked and he was barred from reenlistment and subsequently discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14-5a, for misconduct based on his conviction by civil authorities.  He was reduced to the pay grade of E-1.  He had completed 20 years, 1 month, and 4 days of net active service 

3.  Notwithstanding that the ADRB upgraded his discharge to a general discharge and restored his rank and that an administrative error resulted in his being issued a DD Form 214 showing a characterization of HONORABLE service and an Honorable Discharge Certificate, it has long been a policy of the Board not to make an applicant worse off than when they applied. 

4.  However, the applicant’s service was in fact not fully honorable as he committed his offense while on active duty and to grant him a retirement would amount to a windfall.  Retirement of an enlisted member with more than 20 but less than 30 years of active service is discretionary, not required.

5.  Accordingly, there appears to be no basis to grant his request to reinstate a length of service retirement that was both never effected or deserved.

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 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)                                         AR20130005090





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ABCMR Record of Proceedings (cont)                                         AR20130005090



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