BOARD DATE:	  8 October 2014

		DOCKET NUMBER:  AR20140000557 


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 an upgrade of his discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states he was retained 2 years beyond his expiration of term of service (ETS) date to initiate administrative separation in violation of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Army Regulation 40-501 (Standards of Medical Fitness), and Army Regulation 40-400 (Patient Administration).

	a.  He was not given a separation physical in compliance with Army Regulation 40-501.

	b.  He requested a military attorney to represent him during separation proceedings; he was represented by Captain S____ E____ and not a military attorney.

	c.  He was not allowed to present mitigating evidence or a statement to the administrative separation board.

	d.  Under Army Regulation 635-200, a Soldier in civilian confinement and not under military control will be separated under paragraph 2-13b which states, "A Soldier in duty status who is delivered to civil authorities in accordance with Army Regulation 630-10 (Absence Without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) prior to ETS, will be credited with the period of time in the hands of civil authorities in the computation of the expiration of service date unless finally convicted prior to the ETS.  When the term of service expires, the Soldier will be separated in absentia by reason of ETS."

	e.  A violation of Army regulations is a violation of military order and discipline and an injustice to all Soldiers.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* Company B, 1st Battalion, 63d Armor Regiment, memorandum, dated 20 March 1994, subject:  Separation under Army Regulation 635-200, Chapter 14, Section II, Paragraph 14-12c, for Commission of a Serious Offense
* Standard Form 88 (Report of Medical Examination), dated 16 November 1993
* Standard Form 93 (Report of Medical History), dated 16 November 1993
* self-authored statement
* DA Form 638 (Recommendation for Award), dated 28 April 1990
* 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.  The applicant is currently serving on death row in the State of California for one count of forcible rape and murder, two counts of conspiracy to commit murder, and one count of murder for hire.

3.  The applicant enlisted in the Regular Army for a period of 4 years on 23 February 1988.  His active duty ETS date was established as 22 February 1992.  He was advanced to the rank/pay grade of specialist/E-4 on 1 November 1989 and he was laterally appointed to the rank/pay grade of corporal/E-4 on 17 November 1989.

4.  On 6 May 1991, he was questioned by the U.S. Army Criminal Investigation Command regarding his involvement in a murder in a joint investigation with the San Bernardino Sheriff's Office.  It appears that he was confined by civil authorities on 7 May 1991 pending charges.

5.  A Standard Form 88 shows he was examined on 16 November 1993 at Weed Army Community Hospital, Fort Irwin, CA, and found qualified for separation.  There is no evidence indicating he suffered any service-related injuries while he was held in civilian confinement.

6.  On or about 20 March 1994, he was notified in writing of his company commander's intent to initiate action to involuntarily separate him for misconduct due to the commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c.  The commander's reason for the proposed action was the applicant's charge in a civilian court for murder.  His commander recommended his discharge under other than honorable conditions.  He was advised of his right to consult with counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority.

7.  On or about 20 March 1994, he acknowledged he was advised by consulting counsel of the basis for the action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, and its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He indicated:

* he requested consideration of his case by an administrative separation board
* he was advised of his right to submit a conditional waiver of his right to have his case considered by an administrative separation board
* he requested a personal appearance before an administrative separation board
* he requested consulting counsel and specified that he wanted a military lawyer
* he understood that his willful failure to appear before the administrative separation board by absenting himself without leave would constitute a waiver of his rights to personal appearance before the board
* he understood that he might expect to encounter prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he understood he could apply to the Army Discharge Review Board or the ABCMR if he received a discharge/character of service which was less than honorable and an act of consideration by either board did not imply that his discharge would be upgraded
* he understood that he could withdraw this waiver up until the date the separation authority ordered, directed, or approved his separation
* he further understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge

8.  He submitted a written statement in his own behalf wherein he requested a general discharge under honorable conditions in consideration of the nature of his crime and the mitigating circumstances under which it was allegedly committed.  He stated he had not been convicted of any wrongdoing and had only been detained by civilian authorities.  His help in the criminal case should be weighed in his favor.  He has been an exemplary Soldier and was promoted to corporal in less than 15 months, noting an excellent military career and leadership potential.  He cited his individual achievements.  He did have a drug problem and tried to be released from active duty for the good of the service, but his chain of command stated he could do more with rehabilitation and reassignment.  He was detained by civilian authorities during his rehabilitation.  He requested a personal appearance before an administrative separation board to explain his actions further and in detail.

9.  On 20 March 1994, the applicant's company commander recommended his separation for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c.  He cited the applicant's arrest and confinement for the charge of murder as the specific reason for this action.

10.  On 20 March 1994, the applicant's battalion commander recommended his separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for conviction in civilian court.  On 22 March 1994 after reviewing the subject case, the applicant's brigade commander further recommended his discharge under other than honorable conditions.

11.  On 13 May 1994, an administrative separation board determined the allegation of murder was supported by a preponderance of the evidence and recommended the applicant's discharge from the service under other than honorable conditions.  The applicant was represented by his military counsel, Captain S____ E____.

12.  On 8 June 1994 after reviewing the administrative separation board proceedings, the discharge authority approved the board's recommendation for the applicant's discharge for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c.  He waived rehabilitative transfer and directed characterization of the applicant's service as under other than honorable conditions and reduction to the rank/pay grade of private/E-1.

13.  On 16 June 1994, he was discharged under other than honorable conditions by reason of misconduct under the provisions of Army Regulation 635-200, chapter 14.  He completed 3 years, 2 months, and 14 days of net active service during this period.  He was charged with lost time from 7 May 1991 through 16 June 1994 under Title 10, U.S. Code, section 972.

14.  Title 10, U.S. Code, section 972 (Members:  Effect of Time Lost) provides, in part, that an enlisted member of an Armed Force who:

	a.  is absent from his or her organization, station, or duty for more than 1 day without proper authority, as determined by competent authority; or

	b.  is confined by military or civilian authorities for more than 1 day in connection with a trial, whether before, during, or after the trial;

is liable, after his or her return to full duty, to serve for a period that, when added to the period that he or she served before his or her absence from duty, amounts to the term for which he or she was enlisted or inducted.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-5 states that Title 10, U.S. Code, section 972, requires a Soldier to make up lost time due to being absent without leave, in confinement, and so forth, prior to separation.

	b.  Paragraph 1-26 states retention beyond a Soldier's ETS to process administrative separation proceedings pursuant to this regulation is not authorized.

	c.  Paragraph 2-13 states 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 or her absence.

		(1)  A Soldier held in custody by civil authorities does not accrue service creditable for completion of his or her period of enlistment, or order to active duty, except for any period in which he or she was in an authorized leave status or when the Soldier's commander determines per Army Regulation 630-10 that the time spent in the custody of civil authorities should not be considered as lost time.

		(2)  Upon return to military control, a Soldier's ETS will be recomputed.

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

	d.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	e.  Paragraph 3-7b states 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.

	f.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

16.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).

17.  Army Regulation 40-400 (Patient Administration) prescribes policies and mandated tasks governing the management and administration of patients.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was retained 2 years beyond his ETS date to initiate administrative separation in violation of Army Regulation 635-200, Army Regulation 40-501, and Army Regulation 40-400.

2.  His records show he enlisted in the Regular Army on 23 February 1988 for a period of 4 years.  His active duty ETS date was established as 22 February 1992.  However, a Soldier is liable after his return to full duty to serve for a period that, when added to the period he served before his absence from duty, amounts to the term for which he enlisted.

3.  He was confined by civil authorities and he was charged with lost time from 7 May 1991 until his discharge on 16 June 1994.  A Soldier held in custody by civil authorities does not accrue service creditable for completion of his or her period of enlistment or order to active duty.  Title 10, U.S. Code, section 972, requires a Soldier to make up lost time due to being absent without leave or in confinement prior to separation.  In effect, his ETS date was extended for each day he was in civil confinement.  Consequently, his contention that he was retained 2 years beyond his ETS date to initiate administrative separation in violation of Army Regulation 635-200 is without merit.

4.  The applicant's contention that he was not given a separation physical in compliance with Army Regulation 40-501 is also without merit.  His records show he underwent a separation physical examination on 16 November 1993 at Weed Army Community Hospital and was found qualified for separation.  There is no evidence indicating he suffered any injuries during his active duty service requiring referral to a medical evaluation board and no record of injuries sustained while he was held in civilian confinement.  As such, there is no evidence of any violations of Army Regulation 40-501 or Army Regulation 
40-400.

5.  The applicant's contention that he was not represented by a military attorney during separation proceedings is also without merit.  His records show he was represented by Captain S____ E____ who advised him of the basis for the action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, and its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.

6.  The applicant's contention that he was not allowed to present mitigating evidence or a statement to an administrative separation board also appears to be without merit.  He was represented by military counsel before an administrative separation board.  There is no evidence to show he was denied the opportunity to present mitigating evidence or a statement through his counsel or that he was ineffectively represented.

7.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

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)                                         AR20140000557



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ABCMR Record of Proceedings (cont)                                         AR20140000557



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