IN THE CASE OF:	  

		BOARD DATE:  27 March 2014

		DOCKET NUMBER:  AR20130010007 


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:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect:

	a.  the applicant's discharge under other than honorable conditions be vacated and he be reinstated on active duty in the rank of sergeant first class (SFC); or in the alternative

	b.  item 12b (Separation Date This Period) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) be amended to show 
30 June 2008 instead of 23 February 2006; and 

	c.  the applicant's military records be corrected to show he retired on 30 June 2008 in the rank of sergeant first class (SFC).

2.  Counsel states:

	a.  the applicant was separated from the Army in contravention of Army regulations.  As a result, his discharge was characterized as under other than honorable conditions.

	b.  following his conviction in 1998, he was retained in the Army, deployed to Iraq, reenlisted  twice, and was separated thereafter in February 2006 based on the 1998 conviction. 

	c.  the applicant was discharged from the Army on 23 February 2006 for conviction by civil court.  The conviction (guilty plea) was entered on 
24 February 1998.  He was reduced to E-1 on 8 March 2005.

	d.  the applicant presented his case before the Army Discharge Review Board (ADRB) in June 2011.  The ADRB voted 3-2 to not change the characterization of his discharge.

	e.  the administrative discharge proceeding that resulted in the applicant's discharge was contrary to Army regulations.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Section II, conviction by a civil court, specifically prohibited the elimination action that resulted in his discharge in April 2006.  In addition, the elimination action failed to adhere to several regulatory requirements and was not executed in compliance with Army Regulation 635-200, Section II.

	f.  the applicant was arrested on 13 February 1997 for sexual assault on a child.  He was convicted (guilty plea) by a civilian court on 24 February 1998.  He was given a deferred sentence with probation.  Following the arrest and guilty plea, he self-reported the situation to his chain of command.  His immediate commander made a decision not to initiate elimination proceedings.  Following his civil conviction, he deployed with his unit to Iraq in 2003, reenlisted twice, and was promoted to SFC.

	g.  in 2006, he was taken back to court on the 1998 charges because of a violation of his probation.  He was charged with probation violation because he had taken up residence with his wife and had contact with his daughter (who was then 16).  He was sentenced to 4 years for violating the conditions of probation.  He appealed the action and presented a complete explanation of the circumstances including the fact his wife was terminally ill and he was released from jail (sentence commuted) with probation to continue.

	h.  during his confinement, a second elimination action was initiated for the same civil conviction that was considered in 1998.  He did not appear at the board and to this date he has not received a record of the proceedings.  All of this occurred during his appeal of his civilian conviction.  Pursuant to paragraph 14-6(b)2 of Army Regulation 635-200, "If an appeal has been made [from a civil conviction] discharge will be withheld until formal action has been taken or until the Soldier's current term or service … expires."  The premature discharge during his appeal process was contrary to the requirements of Army Regulation 635-200.  On this basis alone, the chapter 14 proceeding should be vacated because there was no civil conviction during his current term of enlistment and the punishment for the probation violation was pending appeal.   

3.  Counsel further states:

	a.  the applicant was improperly considered for elimination action in 2006 for a civil conviction in 1998 concerning which his chain of command determined he should be retained.

	b.  following the applicant's arrest in 1997, he made full disclosure to his chain of command.  At that time his command decided not to initiate administrative elimination action.  Paragraph 14-5 of Army Regulation 635-200 states initiation of separation action is not mandatory.  The regulation states the Soldier's leadership should consider, among other things, the Soldier's ability to perform duties effectively now and in the future, including potential for advancement or leadership.  It is apparent the applicant's chain of command made the right decision in 1998, as evidenced by his promotion to SFC and his Meritorious Service Medal.

	c.  the applicant had already been the subject of an administrative separation proceeding and was retained on active duty.   His chain of command was aware of his criminal proceedings.  Fairness to the applicant and respect for the decision of his chain of command dictate that he should not have been subjected to administrative double jeopardy.

	d.  Paragraph 1-17 of Army Regulation 635-200 states no Soldier will be considered for administrative separation because of conduct that has been the subject of an administrative separation proceeding resulting in a final determination by a separation authority that the Soldier should be retained.

	e.  the applicant asserts that he was not given proper notification of the board proceedings nor was he advised of his rights as required.

	f.  the Army was precluded from initiating elimination action for conduct that occurred during a previous enlistment.

	g.  the adverse information from a prior enlistment was the basis for the elimination action.  Nowhere does the regulation authorize an elimination action for misconduct in a prior enlistment when such misconduct was known by the Soldier's chain of command and a considered decision was made to not initiate elimination action.  In this case, the event is clearly remote in time.
	h.  the Army was precluded from characterizing the applicant's discharge as other than honorable.

	i.  the Department of Veterans Affairs (VA) correctly upgraded the applicant's discharge to honorable (for VA purposes) because "the military allowed you to re-enlist on two different occasions after December 31, 1996 with no bar to re-enlistment.  You had faithful and meritorious service until your discharge from active duty on February 23, 2006."

	j.  neither the discharge nor characterization of discharge should have been executed because the applicant's appeal of his sentence in 2006 was granted.

	k.  the applicant's noncommissioned officer evaluation reports were consistently top-notch.    

	l.  letters from Soldiers with whom the applicant served provided letters attesting to his leadership qualities and character.

	m.  at the time of the probation violation, August 2005, the applicant was living in Texas.  The basis for the violation was he failed to report an address change, he admitted to having unapproved contact with his daughter, and he admitted living with his wife and daughter without approval.  The charges brought against him in 1997 related to his step-daughter.  The probation violation was because he lived with his wife and biological daughter.  His step-daughter lived in Colorado at the time.

	n.  the step-daughter wrote a letter for the applicant for his reconsideration hearing.  She states she and her father have a good relationship and she has forgiven him for what occurred in 1996.

	o.  his wife was ill and had been diagnosed with terminal cancer.  The applicant had moved back into his home because his wife's illness.  She passed away on 8 April 2007.  

	p.  the applicant's military service throughout his career was honorable.  The criminal offense was indeed serious.  However, the offense must be balanced against other issues.  He took responsibility for his misconduct.  He made amends to his step-daughter and spent approximately 8 years separated from his wife and family.  During that time he served in the Army with honor, receiving two honorable discharges, and he was promoted to SFC.  He has long since completed all the terms of his probation.  He wants to put the uniform back on and assume a leadership position in which he can help the today's young, inexperienced Soldiers become men and women of character and dedication.
	q.  the applicant should not have been eliminated from the Army.  He was just over 2 years away from retirement.  

4.  Counsel provides 17 exhibits outlined in his brief.

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 1 December 1988 and he remained on active duty through continuous reenlistments.  On his last reenlistment, dated 29 December 1998, he reenlisted for an indefinite period.  He was promoted to SFC on 1 October 2002.  He deployed to Saudi Arabia and Iraq.

3.  The applicant's record contains a DA Form 4187 (Personnel Action), dated 
25 February 2006, which shows he was placed in civil confinement effective 
13 February 2006 for violating the conditions of his probation.  He was a registered sex offender who was sentenced to be confined by the State of Colorado for four years.  

4.  Orders, dated 8 March 2005, show he was reduced from SFC to E-1 effective 23 February 2006. 

5.  His record is void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 shows he was discharged under other than honorable conditions on 23 February 2006 under the provisions of Army Regulation 635-200, chapter 14, for misconduct (civil conviction).  He completed a total of 18 years, 11 months, and 3 days of creditable active service.

6.  His DD Form 214 shows in:

* Item 12b – he was separated on 23 February 2006
* Item 12c (Net Active Service This Period) – he completed 17 years, 
      2 months, and 29 days
* Item 12d (total prior Active Service) – he had 1 year, 8 months, and 4 days of prior active service 

7.  There is no evidence which shows the applicant served on active duty after 
23 February 2006.

8.  There is no evidence which shows he completed 20 years of active duty. 

9.  On 30 June 2011, the ADRB denied his request for an honorable discharge.

10.  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 (military or civilian 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.

11.  Army Regulation 635-200, paragraph 1-17(d), states that in unusual situations, conduct from a prior enlistment, that does not constitute a pattern of conduct that is manifested over an extended period of time, may be considered in determining whether retention or separation is warranted.  An example is where a single incident of misconduct occurring in the prior period of service, by itself, warrants separation and the officials in the Soldier’s chain of command neither knew, nor reasonably should have known, of the conduct at the time the Soldier reenlisted.  Commanders who believe that the Soldier’s case represents an unusual situation within the meaning of this paragraph should request guidance from the Commanding General… 

12.  Army Regulation 635-200, chapter 12 sets the policies and procedures for voluntary retirement of Soldiers because of length of service.  It states that a 
Soldier who has completed 20 years active federal service and who has completed all required service obligations are eligible to retire.

13.  The applicant provided evidence that shows he was arrested on 13 February 1997 for sexual assault on a child and convicted on 24 February 1998.  He was given a deferred sentence with probation.  Probation carried certain restrictions.   

14.  The applicant did not provide a complete and detailed record of his arrest and subsequent conviction.  However, the evidence indicates he may not have been convicted until 2006 when he was discharged from the Army.  

15.  The parole revocation documents indicate he pled guilty to violating C.R.S. § 18-3-405(2)(d) (Sexual Assault on a Child: Pattern of Sexual Abuse).  The document indicates it is a Class 3 Felony.  The record indicates the applicant pled guilty to this conduct from 1 December 1996 to 31 December 1996.  

16.  After his arrest and court proceeding he reenlisted on 10 April 1998 for two years.  He reenlisted again on 29 December 1998 for an indefinite period.  On   11 September 2002 he was promoted to SFC.  

17.  The applicant provided a 25 August 2005 “Complaint and Report of the Probation Officer.”  The report indicated that the applicant was “granted probation on 1-23-03 for the crime of Sexual Assault on a Child, F3, for a period of 5 years.”   The Report alleged the applicant violated three conditions of the order of supervision.   

* he failed to report a change of address
* he had unapproved contact with a child under 18 ( his minor daughter) 
* he resided in a residence with child under 18 even if his own children without advance approval of his probation officer 

18.  The applicant was served a summons and not arrested because he was employed with the U.S. Army and it was assumed he would remain stable in Texas.   This Complaint indicates there was some change to his probation status on 13 January 2003.  

19.  His record contains a FLAG initiated on 13 September 2005.  The FLAG was initiated for Adverse Action.  

20.  According to the applicant, on 13 February 2006 his parole was revoked and he was resentenced to 4 years confinement.  He appealed this sentence on 27 February 2006.  The record contains a court order dated in late 2006.  The document is unclear regarding the date of the order.  It may have been signed on 10 September 2006.  The order indicates the sentence was modified on 10 August 2006.  The document indicates that the applicant was originally sentenced on 24 February 1998 to “DEFERRED SENTENCE.”   He was resentenced after a “35B Hearing.”  The order indicates the deferred sentence was to 4 years of “Unsupervised.”  


21.  C.R.S.A. § 18-1.3-102 “Deferred sentencing of defendant” states in part: 

   (1)(a) In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for the purpose of entering judgment and sentence upon the plea of guilty for a period not to exceed four years for a felony or two years…

   (2) Prior to entry of a plea of guilty to be followed by deferred judgment and sentence, the district attorney, in the course of plea discussion as provided in sections 16-7-301 and 16-7-302, C.R.S., is authorized to enter into a written stipulation, to be signed by the defendant, the defendant's attorney of record, and the district attorney, under which the defendant is obligated to adhere to such stipulation. The conditions imposed in the stipulation shall be similar in all respects to conditions permitted as part of probation…

   In Kazadi v. People of Colorado, 291 P.3d 16, 2012 CO 73 (Supreme Court of Colorado, Dec. 20, 2012), the Court discussed the nature of a deferred judgment and sentence.   The Court stated:

   If the defendant violates any of the stipulated conditions, however, the court has authority to revoke the deferral and enter judgment and sentence upon his guilty plea.  A deferred sentence is a unique dispositional alternative to the traditional plea of guilty. It is a privilege, whereby the defendant is the primary beneficiary of a process that may result in the dismissal of the charges against him. (citations omitted)

   And, “A deferred judgment is not a judgment of conviction or a final, appealable judgment.”  Furthermore, “a deferred judgment is a continuance of the defendant's case in lieu of the imposition of sentence, where a sentence may be issued if the defendant fails to abide by prescribed conditions.”

22.  After the 35B hearing, the applicant was sentenced to 5 years of “Intensive Supervision Program.”  His sentence to 4 years confinement was set aside.  The document is unclear regarding the date of the order.  It may have been signed on 10 September 2006.  The order indicates the sentence was modified on 10 August 2006.  The order indicated that at the time, the applicant was confined in the Department of Corrections.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant failed to submit a complete record of his civilian conviction.  The record indicates he entered a plea of guilty in 1998.  He was accorded some type of deferral of conviction and sentence in 1998.  He violated his parole restrictions and was convicted, pursuant to his plea, in 2006 and immediately sent to civilian confinement.  He appealed the sentence and was released on probation/parole.  Additionally, the available evidence does not indicate that he was convicted until 2006.  He did not provide detailed court records to show that his conviction was rescinded.  He was released from civilian confinement.

2.  The applicant could have submitted a more complete record of his civilian conviction which would have assisted in understanding the process.  Given the serious nature of the offenses and the lack of a complete record relief should be denied.

3.  Counsel's contentions were carefully considered.  However, in the absence of evidence to the contrary it must be presumed the applicant's separation processing was administratively correct and in conformance with applicable regulations.  Without the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  Therefore, there is an insufficient evidentiary basis for vacating the applicant's discharge and reinstating him on active duty in the rank of SFC. 

4.  Counsel requests item 12b of the applicant's DD Form 214 be amended to show 30 June 2008 instead of 23 February 2006.  Since there is no evidence and counsel provides no evidence which shows the applicant served on active duty after 23 February 2006, there is insufficient evidence on which to base amending item 12 of his DD Form 214.

5.  Evidence shows the applicant completed a total of 18 years, 11 months, and 
3 days of creditable active service.  Since he did not complete 20 years of active service, there is no basis for granting the request for a length of service retirement or correcting his military records to show he retired on 30 June 2008 in the rank of SFC.

6.  Since the applicant's probation was revoked after his last reenlistment, counsel's contention that he was improperly discharged for an offense that occurred during a previous period of service is unfounded.  








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)                                         AR20130010007





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ABCMR Record of Proceedings (cont)                                         AR20130010007



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