BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140010812 


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 item 12b (Separation Date This Period) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to read 30 November 2010 instead of 12 March 2009.

2.  The applicant states:

	a.  Fort Sill, Oklahoma did not process his DD Form 214 until more than 18 months after receiving the orders required to do so.

	b.  Failure to issue him a DD Form 214 was the root cause of his current unresolved situation with Tricare, to include a debt to the U.S. Government.

	c.  He was placed on extended leave pending appellate review of his case.

	d.  Before being placed on appellate leave, he was informed of the benefits retained by his family and him, which included Tricare.

	e.  When he received his DD Form 214 via email in January 2012, he immediately informed Tricare and requested removal from Tricare enrollment.

	f.  In the fall of 2013, he and his family began receiving letters from Tricare indicating that their benefits had been denied retroactively back to 12 March 2009.

	g.  He has spent the past 8 months investigating the situation with Tricare, the Personnel Control Facility at Fort Sill, and the Defense Health Agency

	h.  He was told that his case was outside of their authority and Fort Sill will not accept responsibility for errors in his record.  They have denied his requests to correct his record.

	i.  Communication failures began with the U. S. Army Staff Judge Advocate, U.S. Army Human Resources Command (HRC), and Personnel Control Facility at Fort Sill, Oklahoma.

	j.  When he contacted his appellate attorney in late July 2008, he was informed that he had not won his appeal with the Court of Appeals of the Armed Forces and that his discharge was forthcoming.

	k.  He waited for his DD Form 214 officially indicating that he had been discharged and it never arrived.

	l.  In March 2009, he discovered that HRC had uploaded a new set of orders to his official military personnel file (OMPF).

	m.  On 10 March 2009, he sent emails to two Department of the Army civilian employees requesting assistance with obtaining his DD Form 214.

	n.  In response to his emails, he was told that the electronic copy of the orders he provided was what was needed to initiate his DD Form 214.

	o.  He needed the DD Form 214 so that the Defense Eligibility Enrollment System (DEERS) could remove him and his family members from that system and Tricare.

	p.  Disenrollment from Tricare would provide him and his family with a Certificate of Creditable Coverage.

	q.  He could then provide the certificate to his or his spouse's employer which would have allowed them to enroll in private healthcare plans outside of the established enrollment period.

	r.  Anything less would have placed him and his family in a position where they did not have health insurance of any form.

	s.  He made numerous attempts to get a copy of his DD Form 214 and on 3 September 2010, he created a screen shot of his online OMPF at HRC and his DD Form 214 had still not been uploaded.

	t.  In the fall of 2011, he and his wife decided to make a break from Tricare regardless of not having his DD Form 214.

	u.  On 6 January 2012, he received an email with an electronic copy of his DD Form 214 attached and shortly thereafter, he informed Tricare that he had been discharged and should be removed from enrollment.

	v.  On 20 January 2012, he received copies of Certificates of Creditable Coverage for him and his family all showing the date that coverage ended was 12 March 2009.

	w.  In the fall of 2013, he began receiving letters from Tricare informing him that previously paid claims to health care providers were being denied and that refunds were being requested.

	x.  He has made numerous attempts to correct this issue and he was eventually directed to request a correction of his DD Form 214 through the Army Review Boards Agency (ARBA).

3.  The applicant provides a letter to ARBA dated 5 June 2014 and exhibits A through P as listed in his letter to ARBA.

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.  With prior enlisted service in the United States Army the applicant accepted an appointment as a Reserve commissioned officer on 12 May 2000, in the rank of second lieutenant (O-1).  Upon his acceptance, he was immediately ordered to active duty.

3.  He was promoted to first lieutenant (O-2) on 27 November 2001 and he was promoted to captain (O-3) on 1 October 2003.

4.  On 24 May 2005, the applicant was convicted by a general court-martial of one specification of conduct unbecoming an officer and gentleman.  At or near Lawton, Oklahoma, on one occasion between on or about 1 September 2004 and 31 October 2004, for "tak[ing] indecent liberties" with a female under 16 years of age, not his wife, by looking in the bathroom window from outside the house in order to view her naked body in the shower, with the intent to gratify his lust, which incident was observed by his wife.  He was sentenced to 30 days of confinement and to be dismissed from the service.

5.  The convening authority approved the sentence on 8 September 2005 and, except for the part of the sentence extending to dismissal, ordered the sentence executed.  The automatic forfeitures as required by Article 58b, Uniform Code of Military Justice, were waived on 26 May 2005, effective 7 June 2005 until 17 June 2005.  That portion of the sentence extending to confinement had been served.

6.  On 15 November 2007, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

7.  On 24 June 2008, the decision of the United States Army Court of Criminal Appeals was reversed as to the words "take indecent liberties" and the finding of guilty as to those words was set aside and those words were dismissed.  

8.  The United States Court of Appeals of the Armed Forces affirmed the decision of the Court of Criminal Appeals as to amending the charge to read that he did "at or near Lawton, Oklahoma, on one occasion between on or about 1 September 2004 and 31 October 2004, ‘dishonorably’ look in the bathroom window from outside the house in order to view in the shower the naked body of a female under 16 years of age, not his wife, with the intent to gratify his lust, an act that was observed by his wife."  

9.  On 13 January 2009, General Court-Martial Order Number 1 was published. The Assistant Secretary of the Army (Manpower & Reserve Affairs) approved the sentence as affirmed by the United States Army Court of Criminal Appeals and the United States Court of Appeals for the Armed Forces.  He ordered the dismissal executed.  The orders show he was to cease being a member of the U. S. Army Reserve (USAR) at midnight on 28 January 2009.
10.  On 28 January 2009, the applicant was dismissed from the Army under other than honorable conditions as the result of a duly reviewed and affirmed general court-martial conviction.

11.  On 30 November 2010, a DD Form 214 was prepared and issued to the applicant.  Item 12b on his DD Form 214 shows his separation date as 12 March 2009.

12.  On 1 July 2014, HRC issued the applicant a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge From Active Duty) amending item 12b to show his separation date as 28 January 2009.

13.  The applicant provides copies of letters and claim denials from Tricare.  He also provides copies of email between Army officials and himself showing his attempts to receive his DD Form 214.

14.  Army Regulation 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  The regulation stated that the DD Form 214 was a synopsis of the Soldier's most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  It stated that the Soldier's transition date will be entered in item 12b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  While he shows he made attempts to get his DD Form 214, he was dismissed as a result of a general court-martial conviction and his DD Form 214 could not be issued until the appellate process was completed.

3.  General Court-Martial Order Number 1 was published on 13 January 2009.  The orders show he ceased being a member of the USAR at midnight on 28 January 2009.  These orders were uploaded to his OMPF on 27 January 2009.  He knew he had been dismissed under other than honorable conditions and as a captain in the USAR, and he should have known that he was not longer eligible for Tricare benefits.

4.  It appears that the applicant is attempting to benefit from the length of time that passed before his DD Form 214 was prepared.  However, the fact that he and his family would have had to wait for an open season to enroll in a different healthcare plan is not a sufficiently compelling reason or justification to continue access to a benefit to which he was not entitled.

5.  There are no provisions for amending item 12b on his DD Form 214 to add service that he did not complete.  In accordance with the applicable regulation, the Soldier's transition date was entered in item 12b.  He was dismissed from the USAR on 28 January 2009 and HRC issued a DD Form 215 correcting item 12b on his DD Form 214 to show this date.

6.  The applicant has not shown error or injustice in the actions taken by the Army in his case.

7.  In view of the foregoing, his request should be denied.

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)                                         AR20140010812



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ABCMR Record of Proceedings (cont)                                         AR20140010812



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