BOARD DATE:	15 September 2015  

		DOCKET NUMBER:  AR20140019006


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, in effect, that his under other than honorable conditions discharge be upgraded to honorable and that his original request to retire be granted.

2.  The applicant states, in effect, the following:

     a.  His discharge should be upgraded and his original retirement request should be approved based on errors that were committed.

     b.  He felt the Commanding General (CG) and his staff colluded against him to ensure he would not get the opportunity to retire.

     c.  He was never notified of his flagging action and never received a copy.

     d.  A federal grand jury indicted him on 1 April 1998, but an indictment is not a conviction, which the Army used against him in his separation case.

     e.  He submitted a DA Form 4187 (Personnel Action) on 11 June 1998, wherein he applied for retirement so he could concentrate on establishing his defense.  He applied for retirement based on Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 12-7c, which he contends does not preclude Soldiers with unfavorable actions from applying, and that the local retirement authority will consider each request on a case by case basis.  He states his request was not forwarded to the local approval authority.

     f.  He resubmitted his request for retirement on 11 August 1998, which was not processed.  He then submitted a complaint under Article 138, Uniform Code of Military Justice (UCMJ) which the Garrison Commander responded to.  He also submitted a third request for retirement.

     g.  His requests for retirement were never acted on by the CG and procedural errors occurred.  According to Army Regulation 635-200, paragraph 2-6, "Soldiers who have completed 20 or more years of active federal service creditable toward retirement, and for whom separation is recommended to [the U.S. Total Army Personnel Command (PERSCOM)], will be given the opportunity of applying for retirement."  He also points out that paragraph 1-21f ensures that any Soldier who has completed     18 years or more of active federal service will not be involuntarily discharged or released from active duty without approval by PERSCOM.

     h.  Following the advice of his attorney on 2 October 1998, he pleaded guilty to attempted bribery.

     i.  He was selected for non-retention on active duty under the QMP (Qualitative Management Program) on 3 December 1998, based on a letter of reprimand he received for a charge that was later dismissed.  He states the QMP packet was never presented to him so he could prepare his option statement, which would have given him an opportunity to submit a request for retirement to Headquarters, Department of the Army (HQDA).  The packet was sent back to the U.S. Army Enlisted Records and Evaluation Center (EREC) due to his pending chapter action.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)) does not state that a flagged Soldier cannot be given a notice of QMP and he was not under any process for separation at that time.

   j.  He was wronged by the fact that his retirement paperwork never was considered by HQDA, per applicable Army regulations, and an administrative flag should not have precluded that process.

3.  The applicant provides:

* four self-authored pages with his application addressing his contentions
* a memorandum from Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss (USAADACENFB), dated 14 September 1998, subject: Request for Retirement
* a memorandum from the Staff Judge Advocate, dated 12 June 1998, subject: Request for Waiver
* DA Form 4187, dated 11 June 1998
* a memorandum from the applicant to USAADACENFB, dated 11 June 1998, subject:  Request for Waiver
* DA Form 2339 (Application for Voluntary Retirement), dated 11 June 1998
* DA Form 2339, dated 11 August 1998
* a memorandum from the applicant to USAADACENFB, dated 8 February 1999, subject:  Complaint Under Article 138, UCMJ (Army Regulation 27-10 (Military Justice)) (Applicant)
* a memorandum from the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigation Officer, dated 23 April 1999, subject: Army Regulation 15-6 Investigation
* a document from the Administrative Law Division Reviewer, undated 
* a memorandum from the Commander, Headquarters, U.S. Army Garrison Command, Fort Bliss, TX, dated 3 February 1999
* document from Commander, USAADACENFB, to Commander, U.S. Army Personnel Command (PERSCOM), dated 25 May 1999
* a memorandum from the applicant's Defense Counsel to Commander, USAADACENFB, dated 12 January 1998, subject: Request to Speak with Major General C. Regarding Legal Issues of [Applicant]
* a memorandum from Defense Counsel to the Assistant Secretary of the Army (Manpower and Reserve Affairs), dated 2 June 1999, subject:  Administrative Separation IAW (in accordance with) 635-200, Chapter 14, paragraph 14-12c, [Applicant]
* a letter from Defense Counsel to Trial Defense Service, dated 
1 December 1998

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 7 September 1973.  He completed his initial training and served through a series of enlistments and reenlistments to include several military occupational specialty changes.  The highest rank/grade he attained in his period of military service was sergeant major (SGM)/E-9.

3.  According to the applicant, he was flagged on or about 11 March 1998; however, a review of his record does not reveal a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)).

4.  The applicant submitted and his records include a DA Form 4187, dated 
11 June 1998, wherein he requested retirement effective 1 September 1999.  In Section IV (Remarks) he stated that he was flagged for adverse action.  On this same date, he requested a waiver by the local retirement approval authority for the flag, IAW Army Regulation 635-200, paragraph 12-7(c).

5.  A memorandum from the Staff Judge Advocate to Commander, USAADACENFB, dated 12 June 1998, stated the following:

     a.  Recommend disapproval of [Applicant's] request to waive the suspension of favorable personnel actions.

     b.  [Applicant] is pending trial in the United States District Court for the Western District of Texas for charges of attempted bribery of a federal official and distribution of over 3,000 pounds of marijuana.  The trial date will be set within the next four weeks.

     c.  After [Applicant's] trial is complete, an administrative separation action will be initiated. 

6.  On 14 September 1998, a memorandum to the applicant from Headquarters, USAADACENFB, subject: Request for Retirement, returned his request without action due to his ineligibility for a voluntary retirement.  It stated that in accordance with Army Regulation 600-8-2, paragraph 1-14(h), retirements are specifically prohibited for Soldiers who are flagged.  It also stated that the applicant had been flagged since 11 March 1998.

7.  The applicant submitted and his records reveal a 3 December 1998 memorandum from Commander, U.S. Army Enlisted Records and Evaluation Center, subject: Department of the Army Imposed Bar to Reenlistment Under the QMP.  A board reviewed his file and determined he be barred from reenlistment citing a memorandum of reprimand dated 15 December 1997 that he received.

8.  His immediate commander notified him on 26 February 1999 that he was initiating action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(c), commission of a serious offense, by reason of misconduct.   As reasons for the proposed action, his commander cited his attempts to import and distribute over 3,000 pounds of marijuana into the United States from Mexico and his attempted bribe of a United States Customs Service Inspector in the amount of $20,000, to allow the import of marijuana into the United States.  On this same date, the applicant acknowledged receipt of the notification memorandum.

9.  His immediate commander recommended, on 26 February 1999, his separation from the United States Army with a characterization of service of under other than honorable conditions.  The reason was outlined in the notification memorandum.  This memorandum states he had a civil conviction for bribery of a public official and was sentenced to 57 months of confinement.

10.  The applicant consulted with counsel on 2 March 1999 and was advised of the basis of the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14-12(c), and its effect.  He requested representation by military counsel and consideration of his case by, and personal appearance before, an administrative separation board.  He chose to not submit a statement in his own behalf.

11.  His intermediate commander recommended his separation from the Army on 5 March 1999, under the provisions of Army Regulation 635-200, chapter 14-12c. 

12.  His case was referred to an administrative separation board on 19 March 1999.

13.  An administrative separation board convened on 30 April 1999 to consider his separation action.  The board found he did, in fact, commit a serious offense, in that he admitted to bribing a federal official and also assisted in the illegal importation of drugs into the United States. The board recommended he be separated from military service and be issued an under other than honorable conditions discharge.

14.  The separation authority concurred with the board's findings and recommendations on 21 May 1999, and forwarded a request to Commander, PERSCOM, requesting approval to involuntarily discharge the applicant pursuant to Army Regulation 635-200, paragraph 1-21(f). 

15.  On 25 May 1999, the separation authority forwarded an endorsement to a DA Form 4187, dated 24 May 1999, subject: Request for Voluntary Retirement; RE: [Applicant], which stated:
     
   a.  Strongly recommending disapproval of [Applicant's] request for retirement.
   b.  [Applicant] is flagged for adverse action (Conviction by Civil Authorities), under the provisions (UP) of Army Regulation 600-8-2, and has been in civilian confinement since 5 March 1999.  He is currently being processed for involuntary separation UP Army Regulation 635-200, Chapter 14.

   c.  The DA Form 4187 itself is not available for review.

16.  The Chief, Retirements and Separations Branch, PERSCOM, notified the separation authority on 17 November 1999 that the Assistant Secretary of the Army (Manpower and Reserve Affairs) had reviewed his request and approved the applicant's involuntary separation.  He further directed the applicant receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.

17.  The applicant was discharged accordingly on 18 November 1999, under the provisions of Army Regulation 635-200, chapter 14-12(c), with an under other than honorable conditions discharge.  His DD Form 214 shows he was credited with the completing 25 years, 5 months, and 7 days of net active service.  It shows his rank/grade at discharge as private/E-1, with time lost totaling approximately 9 months during the period 11 March 1998 through 26 March 1998 and 5 March 1999 through 18 November 1999. 

18.  There is no indication that he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

19.  He provides the following in support of his application:

     a.  Two DA Forms 2339, dated 11 June 1998 and 11 August 1998, wherein he requested retirement on 1 April 1998 and 1 September 1998, respectively.

     b.  A memorandum to the Commander, USAADACENFB, dated 8 February 1999, subject:  Complaint Under Article 138, UCMJ (Army Regulation 27-10), wherein the applicant contends he was wronged by the chain of command in the handling of his retirement application IAW Army Regulation 635-200, and his HQDA Bar to Reenlistment IAW Army Regulation 601-280.  He states he was deliberately denied his rights and options as allowed by applicable Army regulations.

     c.  A memorandum from the Army Regulation 15-6 Investigation Officer (IO), dated 23 April 1999, subject:  Army Regulation 15-6 Investigation.  This memorandum appointed an IO to investigate allegations of wrong-doing by the applicant's chain of command.  The allegations were that the applicant was not allowed to submit his retirement paperwork as permitted by regulation, and that he was improperly denied notice of his QMP paperwork and the opportunity to complete his statement of options form.  The IO cites in this memorandum applicable Army regulations, functional proponent policy rulings, PERSCOM legal positions and policy messages and an HQDA opinion on QMP processing.  The IO opined the following: 

          (1)  Regarding the allegation of not being allowed to submit his retirement paperwork as permitted by regulation, I find that his commander did not wrong him in that he returned his retirement paperwork IAW Army Regulation 635-200.  This finding is supported by the functional and policy proponent for enlisted separation authority and was found administratively correct by PERSCOM's Office of the Staff Judge Advocate.  The retirement authority of reenlisted Soldiers is vested in the local General Courts Martial Convening Authority (GCMCA).  Paragraph 12-7c of Army Regulation 635-200 states, "Soldiers who are under suspension of favorable personnel action per Army Regulation 600-8-2 are not precluded from submitting applications for retirement.  Requests for retirement will be considered on a case-by-case basis by the local retirement approval authority."  The [applicant] submitted three requests for voluntary retirement and a request for waiver of his suspension of favorable personnel action (flag).  His requests were considered by and acted upon by the local retirement authority IAW Army Regulation 635-200.  There is no regulatory requirement for a GCMCA to forward voluntary enlisted retirement requests or requests for waivers regarding locally administered suspensions for favorable personnel actions to DA.  [Applicant] alleges a contradiction between Army Regulation 635-200, paragraph 12-7c and Army Regulation 600-8-2, paragraph 1-15e, but the latter reference has never been intended for enlisted personnel, and such will be clarified in the new publication.  The authority for these administrative actions rest with the local retirement authority and not with HQDA. Consequently, there was no violation of Army regulation or policy.

          (2)  Regarding the allegation of being improperly denied notice of his QMP paperwork and the opportunity to complete his statement of options form, I find that Fort Bliss processed his paperwork properly.  Prior to installation receipt of (applicant's) QMP paperwork from EREC, he was already restricted from favorable personnel actions under a locally imposed flag and was, in addition, pending criminal trial and possible separation action.  It is neither HQDA's nor the EREC's intent to usurp local command actions concerning assigned personnel.  Therefore, [applicant's] QMP paperwork to include the statement of options was returned to EREC without presentation to him. This is standard practice and disposition for any recipient of QMP paperwork who is under local separation action, pending disciplinary action under the UCMJ or undergoing physical disability processing.  Consequently, (applicant) was neither improperly prevented from receiving notice of his QMP paperwork nor wrongly denied the opportunity to complete his statement of options form.  Returning the QMP paperwork to EREC was proper and ordinary given his existing flag, pending criminal trial and potential administrative separation.  There was no violation of Army regulation or policy. 

          (3)  Whereas (applicant's) complaints of being wronged by his chain of command are without merit.  I recommend that all actions taken heretofore by his chain of command regarding retirement and QMP paperwork processing stand.  There is no basis or reason for redress.  When the local separation action is concluded, both actions will advance to ultimate disposition in accordance with governing regulations.

     d.  A document from the Administrative Law Division reviewer, undated, in which he opined, "a local bar to reenlistment takes precedence over QMP for Soldiers who are subsequently selected for QMP.  Commanders should not read the QMP to the Soldier and return the packet along with a copy of the approved local bar to EREC.  Accordingly, it was proper for the command to return the complainant's notification memorandum to the EREC." 

     f.  A memorandum from the Commander, Headquarters, U.S. Army Garrison Command, Fort Bliss, TX, dated 3 February 1999 to the applicant.  This memorandum was in response to his redress under Article 138, UCMJ, dated   12 January 1999.  The commander opined, in effect, the following:

          (1)  The applicant contended that his retirement request was not forwarded to PERSCOM for processing. He states that being under suspension of favorable personnel action since 11 March 1998, he was not entitled to relief.  The Army regulation stated retirements will be considered on a case-by-case basis by the local retirement authority and in his case the CG considered his request.  However, based on the seriousness of his federal criminal charges the retirement request warranted disapproval.

          (2)  He was unable to grant relief on the QMP packet since, in consultation with EREC, it was returned to them pending his federal criminal trial.

     g.  A memorandum from the applicant's Defense Counsel to the Commander, USAADACENFB, dated 12 January 1988, subject:  Request to speak with MG C. regarding the legal issues of his client.  This request was denied.

     h.  A letter from the applicant's Defense Counsel to Trial Defense Service, dated 1 December 1998, requesting a continuance to clear up the applicant's military legal issues prior to being sentenced on federal charges.

     i.  A memorandum from the applicant's Defense Counsel to the Assistant Secretary of the Army (Manpower and Reserve Affairs), dated 2 June 1999, requesting his consideration in disapproving the recommended discharge and allowing the applicant to retire.

20.  Army Regulation 600-8-2, prescribes the policies, operating tasks, and steps governing the suspension of favorable personnel actions.  The version in effect at the time stated:

     a.  Paragraph 1-10 (Peacetime Standards of Service):

* a flag will be initiated immediately when a Soldier's status changes from favorable to unfavorable 
* flagged Military Personnel Records Jackets (MPRJ) will be maintained in a restricted access area
* active flag cases will be reviewed monthly 
* a flag will be removed immediately when a Soldier's status changes from unfavorable to favorable

     b.  Paragraph 1-11 (Categories of Flags) provided flags will be submitted when an unfavorable action or investigation (formal or informal) is started against a Soldier by military or civilian authorities. 

     c.  Paragraph 1-12 (Circumstances Requiring a Non-transferable Flag) provided for the initiation of an adverse action flag whenever a Soldier was under charges, restraint, or investigation.

     d.  Paragraph 1-14 (Actions Prohibited by a Flag) lists personnel actions that a flag guards against accidental execution, including retirements.

     e.  Paragraph 1-15 (Processing Exceptions) states this includes actions such as unqualified resignation, discharge, or retirement.  Flagged Soldiers may submit requests for consideration by HQDA.

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

     a.  Paragraph 1-21(f) (Authority to Order Separation prior to Expiration of Term of Service) states any Soldier who has completed 18 or more years of active federal service will not be involuntarily discharged or released from active duty without approval of HQDA, except when discharge is under chapter 3.

     b.  Paragraph 2-6 (b) (Separation Authority Action after Board Hearing) states a Soldier who has completed 20 or more years of active service creditable toward retirement and for whom separation is recommended to HQDA will be given the opportunity of applying for retirement.

     c.  Paragraph 2-12 (c) (Findings and Recommendations of the Board) states when board action is completed on a Soldier with over 18 years of service, the findings and recommendations of the board, with complete documentation and the recommendation of the convening authority, will be forward to HQDA, for final determination when the convening authority recommends discharge.

     d.  Chapter 12 (Retirement for Length of Service) provides:

          (1) Soldiers who have completed 20, but less than 30 years of active federal service in the United States Armed Forces may, at the discretion of the Secretary of the Army, be retired at his or her request.  The Soldier must have completed all required service obligations.  Soldiers are eligible but not entitled to retire upon request.

          (2) Soldiers who are under suspension of favorable personnel actions are not precluded from submitting applications for retirement.  Such requests will be considered on a case-by-case basis by the local retirement authority.

     e.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 

      f.  Paragraph 3-7a, provides that 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.

	g.  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.
22.  Title 10, U.S. Code, section 3914 provides that, under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service computed under section 3925 of this title may, upon his request, be retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his under other than honorable conditions discharge be upgraded to honorable and that his original request to retire be granted was carefully considered.

2. The evidence shows the applicant was under a civil investigation for criminal activity and a flagging action was placed on him on or about 11 March 1998.  He was indicted by a federal grand jury on or about 1 April 1998, and on 11 June 1998 he submitted a retirement request along with a waiver request based on the flag.  The local retirement authority acted upon his request on or about 15 June 1998.

3.  The evidence further shows his command initiated processing for separation under the provisions of Army Regulation 635-200, chapter 14, based on the applicant's commission of a serious offense, with a characterization of under other than honorable conditions.  His case was referred to an administrative separation board on 19 March 1999, which convened on 30 April 1999 and found that he did, in fact, commit a serious offense and recommended his separation with an under other than honorable conditions discharge. 

4.  The separation authority concurred with the board's recommendation and forwarded a request to HQDA to approve his involuntary discharge along with a recommendation for disapproval of a retirement request in accordance with applicable regulations and policies.

5.  His administrative separation 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 consulted with counsel and was advised of the basis for the separation action.  Furthermore, his case was viewed by every level of command, resulting in a final disposition by the Assistant Secretary of the Army for Manpower and Reserve Affairs.

6.  Based on his record of indiscipline, including conviction by a civil court, he compromised the special trust and confidence placed in him as a Soldier and as a noncommissioned officer. These acts of misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge.  Accordingly, he is neither entitled to retirement for sufficient service nor a change in his characterization of service. 

7.  The applicant was selected for QMP on or about 3 December 1998.  He contends that his rights were violated when he was never presented the packet nor given the opportunity to complete his options.  However, he was flagged for non-favorable actions and pending a civil criminal trial and potentially an administrative separation.  The installation sought guidance from EREC on disposition of his paperwork.  Per the Army Regulation 15-6 summary and the Garrison Commander's response to his Article 138 inquiry, EREC directed the applicant's QMP packet be returned to EREC on or about 6 January 1999.

8.  The preponderance of evidence shows that his chain of command sought HQDA guidance in dealing with his situation, and there is no evidence that the chain of command violated his rights.  The applicant further provides no evidence that the chain of command acted improperly or arbitrary.  Therefore, there appears to be no violation of his rights and this contention is without merit.  

9.  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)                                         AR20140019006



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