PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 May 1999
	DOCKET NUMBER:   AC98-09991
                                              AR1998014345

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
          		       records
	Exhibit B - Military Personnel Records (including
	   	       advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be reinstated into the Army at the rank of staff sergeant (E-6) and that his special court-martial be set aside.

3.  The applicant states, in effect, that he was court-martialed for being AWOL for one day which resulted in his being reduced to sergeant (E-5) and forced to leave the Army due to reaching the retention control point (RCP) of 15 years for an E-5.  He further contends that he called his unit to request an extension of his leave and should not have been found guilty of AWOL.

4.  In support of his application, he provides copies of his court-martial orders, extracts of Army regulations, leave requests, telephone bills, letters of support, and copies of his performance evaluations and awards.

5.  The applicant’s military records show that he enlisted in the USAR on 1 May 1979 for 6 years.  On 8 May 1979 his initial active duty for training commenced.  He successfully completed basic combat training and advanced individual training as a multi-channel communications equipment operator (31M).  On 25 February 1980 he was honorably released from active duty and transferred to his USAR unit.  He completed 9 months and 18 days of creditable active duty.

6. On 9 October 1981 the applicant enlisted in the Regular Army for 4 years for duty as an infantryman (11B) with assignment option to a unit of choice in Europe.  He continued to serve on active duty through a series of enlistments. The applicant’s last enlistment was on 23 January 1996 for 2 years, establishing an expiration term of service (ETS) date of 22 January 1998.

7.  On 15 March 1983 as a private first class (E-3), the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failure to obey a lawful order from a commissioned officer by consuming alcoholic beverages while on duty.  On 6 August 1983 he received NJP for failure to obey lawful orders from his superior commissioned officer and noncommissioned officer.  On 6 February 1986 the applicant again received NJP.  The specifics of the NJP are not available to the Board.  

8.  Through successive promotions he attained the rank of staff sergeant on 1 August 1989.

9.  On 10 July 1991 the applicant was awarded the Purple Heart for wounds sustained on 27 February 1991 while engaged in action against an enemy force in the Persian Gulf. 

10.  On 24 February 1992 the applicant received NJP for failure to go at the time prescribed to his appointed place of duty.  The punishment included a forfeiture of $384.00 ($184.00 suspended for 6 months) and 14 days extra duty.

11.  On 20 June 1997 the applicant was charged with being AWOL in violation of Article 86, UCMJ, from 21 March to 14 April 1997 (24 days).  On 17 September 1997 he was further charged with being AWOL on 15 September 1997.  (Note: The applicant had approved emergency leave from Korea to Los Angeles, California, from 5 to 14 September 1997 due to the death of his mother).  The charges were referred for trial by special court-martial empowered to adjudge a bad conduct discharge.  The applicant pleaded not guilty to the charges and both specifications.  He was found not guilty of the 24-day AWOL but guilty of the second specification of AWOL for 1 day.  The sentence consisted of a reprimand and a reduction in rank from staff sergeant (E-6) to sergeant (E-5).  The sentence was adjudged on 30 September 1997.  The convening authority approved the sentence on 25 December 1997.

12.  On 29 December 1997 the applicant applied for relief from court-martial under the provisions of Article 69(b), UCMJ.  On 19 June 1998 The Judge Advocate General denied the appeal on the basis that the applicant had not established a proper and sufficient basis for relief under one or more of the enumerated statutory grounds.

13.  On 9 February 1998 (already past his ETS) the appropriate authority extended the applicant’s ETS to 21 February 1998, pending completion of the court-martial action.

14.  On 21 February 1998 the applicant was honorably discharged with severance pay under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.  He completed 17 years, 
2 months and 1 day of creditable active duty, which put him beyond the RCP of 15 years for his pay grade of E-5.

15.  Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 2 of that regulation provides, in pertinent part, that a soldier must not exceed the RCP by more than 29 days before ETS.  The RCP for a sergeant (E-5) is 15 years.

CONCLUSIONS:

1.  The evidence of record shows the applicant was on approved emergency leave from 5 to 14 September 1997 due to the death of his mother.  The evidence he submits shows that three telephone calls were made from a telephone in Los Angeles to Korea on 12 September 1997.  It is reasonable to presume, as the applicant contends, that he made the calls to request an extension of his leave. 

2.  Nonetheless, the applicant was tried and convicted by special court-martial for 1 day of AWOL, resulting in his reduction from pay grade E-6 to E-5.

3.  After considering all the facts and circumstances of the case, the Board is of the opinion that the sentence of the court-martial was unduly harsh for a 1-day AWOL resulting from late return from emergency leave.  

4.  While the applicant cannot lay claim to having had an exceptionally distinguished career, considering his disciplinary record, still the Board feels he was unjustly treated, particularly since his reduction to E-5 made him ineligible to reenlist and effectively terminated his career after more than 17 years. 

5.  Therefore, the interests of justice would best be served, as a matter of clemency, by setting aside his reduction to E-5 and by deleting the record of his court-martial from the Performance section of his OMPF.

6.  The Board has no authority, however, to set aside his court-martial conviction. 

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by setting aside the reduction in rank to pay grade E-5 of the individual concerned resulting from the approved sentence adjudged by a special court-martial on 30 September 1997;

b.  by deleting the record of the above-mentioned special court-martial from the Performance section his OMPF; and

c.  by granting a waiver of his special court-martial to allow for his reentry into the Regular Army in pay grade E-6, provided he is morally and physically qualified and reenlists within 120 days of official notification of this action by the Army Review Boards Agency Support Division, St. Louis, St. Louis, Missouri.  

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___X____  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ____X___  ________  DENY APPLICATION

		  _Ernest M. Willcher___
		        CHAIRPERSON

INDEX

CASE ID	AC98-09991/AR1998014345	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990520	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.