PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 December 1998                   
	DOCKET NUMBER:   AC98-10165

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Lester Echols		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 correction of his military records to show he was not barred from reenlistment at the time he was discharged, that he receive back pay and that he be granted an early retirement.

3.  The applicant states his Chapter 14 board recommended his retention and the 101st Division Commander directed his retention.

4.  The applicant’s military records show that he enlisted in the Regular Army on 28 September 1981.  On 4 September 1990, he reenlisted for 6 years.  He was promoted to Staff Sergeant on 1 December 1992.  He served in Saudi Arabia during Operation Desert Storm and earned the Armed Forces Expeditionary Medal for service in Haiti during the period 8 January – 7 April 1995.  

5.  There is no record of prior disciplinary actions; however, testimony given during the applicant’s Chapter 14 board indicates he received a summarized Article 15, offense unknown, while in Haiti.

6.  On 31 July 1995, the applicant signed in to Fort Campbell, KY.  He was interviewed for and accepted for assignment to the Non-commissioned Officer Academy (NCO Academy) as an instructor effective 10 August 1995.

7.  On 20 August 1995, he was arrested by civilian authorities for falsely reporting an incident; possession of drug paraphernalia; and no proof of insurance.  On   22 August 1995, a DA Form 4187, Personnel Action, changed his duty status from Present for Duty to Confined in the Hands of Civilian Authorities effective  20 August 1995.  

8.  On 25 August 1995, the applicant was counseled by the NCO Academy First Sergeant reference the reasons for his civil confinement, plus securing part time employment without authorization, lying to a superior NCO and fraudulent use of government billets.  These last two issues related to his being found to be residing in the 20th Adjutant General (AG) Replacement Detachment’s billets when he had stated he would stay with a friend.

9.  On 28 August 1995, the applicant pleaded guilty to filing a false report.  (He later stated his First Sergeant encouraged him to plead guilty and so he would be released from confinement.)  The other two charges of possession of drug paraphernalia and no proof of insurance were dismissed.  On 29 August 1995, the DA Form 4187 returning him from Confined in the Hands of the Civilian Authorities to Present for Duty, effective 28 August 1995, was prepared.

10.  On 29 August 1995, the NCO Academy commandant informed the applicant it was his intention to bar him from reenlistment.  The DA Form 4126-R, Bar to Reenlistment Certificate was prepared on 19 September 1995 and specifically cited “making false statements to military and civilian personnel and absent without leave.”  His counseling statements, which had noted the additional but dismissed offenses of possession of drug paraphernalia, etc., were included as enclosures.  On 17 November 1995, the Commander, 101st Airborne Division approved the bar.

11.  On 7 December 1995, the applicant appealed the bar.  The garrison commander and division commander recommended disapproval of the appeal.

12.  On 7 December 1995, the commandant requested the Staff Judge Advocate prepare an elimination packet.  On 3 January 1996, separation action under the provisions of Army Regulation 635-200, Chapter 14, was formally initiated for commission of a serious offense and conviction by civil court.

13.  On 5 January 1996, the applicant acknowledged notification of the separation action and requested appearance before a separation board.

14.  On 9 January 1996, the commandant notified the division commander of the separation action.  That notification noted as the factual reasons for action recommended as “civil court conviction for filing a false police report and possession of drug paraphernalia.”  It noted as his citations and awards only the Army Service Ribbon and National Defense Service Medal.

15.  On 27 February 1996, Headquarters Department of the Army denied the applicant’s appeal of his bar to reenlistment.

16.  On 11 March 1996, the civil court vacated the applicant’s guilty plea to the charge of filing a false statement and set aside the conviction.

17.  The Chapter 14 board was held 20 March 1996.  All infractions noted in the bar to reenlistment were considered by the board in detail.  Testimony about the applicant’s First Sergeant alleged racism was also given by the Division Equal Opportunity advisor and others.

18.  The board found that none of the allegations were supported by a preponderance of the evidence and recommended the applicant be retained in the service. On 3 May 1996, the division commander approved the findings of the board and directed that he be retained.

19.  On 14 May 1996, the applicant requested removal of his bar to reenlistment. His defense attorney supported his request, noting that the Chapter 14 board completely vindicated him of all allegations of lying to civilian and military authorities, which were the same charges the bar to reenlistment was based upon, and in fact the board members indicted his chain of command failed him and wrongfully accused him.  The president of the board and one other member also provided statements in support of the request, noting that the government failed to show by a preponderance of the evidence that he committed the alleged misconduct and the AWOL charges could have been prevented if his chain of command had been more proactive to assist him.

20.  On 15 May 1996, the two DA Forms 4187 were corrected to read Present for Duty to Absent Without Leave effective 21 August 1995 and Absent Without Leave to confined by Civilian Authorities effective 23 August 1995.  (A letter from the Division chief of staff’s office to the applicant’s Representative in Congress indicates this was done because he did not inform his unit he was in confinement.)

21.  On 22 May 1996, the brigade commander denied the applicant’s request to remove the bar to reenlistment.

22.  On 3 September 1996, the applicant was honorably discharged, in pay grade E-6, after completing 14 years, 11 months and 4 days of active credible service and had 2 days of lost time.  He received half involuntary separation pay.

23.  Conversation with the Defense Finance and Accounting Service - Indianapolis on 19 November 1998 indicates that finance credited the applicant with 8 days of lost time.

24.  The Department of Defense Financial Management Regulation states in Table 3-3 that when a member is confined by civil authorities and the charges are dismissed and it is clear that arrest and detention were not due to a member’s misconduct, then the absence may be excused as unavoidable.  Rule 4 of that regulation states that when a member is confined by civil authorities and the absence is excused as unavoidable then the member is entitled to pay and allowances.

25.  Army Regulation 630-10 establishes policies and procedures for reporting absences.  It outlines the responsibilities of the various layers of staff and command, from the Deputy Chiefs of Staff for Operations and Plans and for Personnel, down through general court-martial convening authorities and the commanding generals of the U. S. Army Reserve Personnel Command and the U. S. Army Total Personnel Command (PERSCOM), through installation commanders and unit commanders to special court-martial convening authorities.  It does not list a responsibility for the individual soldier.  It does state that the commander may approve requests to reclassify AWOL to an authorized absences or to excuse unauthorized absence as unavoidable when the absence did not exceed 15 days.  The commander must consider that the absence was not caused by the soldier’s own misconduct and that the soldier and Army representatives acted as prudently and responsible as could be expected to avoid the absence.

26.  Conversation with the Readiness and Accounting Branch, PERSCOM on   19 November 1998 indicated that there is no written requirement for a soldier to notify his unit when he is confined.

27.  Conversation with the proponent to Army Regulation 630-10, Absence Without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Proceedings, indicated that notification of the 20th Adjutant General Replacement Detachment that the applicant was in confinement was adequate to satisfy any notification requirement on the applicant’s part.

28.  Headquarters, Department of the Army message 081919Z Aug 95 established the Fiscal Year (FY) 96 Enlisted Early Retirement Program.  Within certain other criteria, soldiers with over 15 years but less than 20 years of active federal service were eligible apply for early retirement.  Conversation with the Enlisted Retirements and Separations Branch, PERSCOM on 19 November 1998 indicated that no individual military occupational specialties (MOS) or grades were sent out by message.  An applicant’s request would arrive at PERSCOM and they would approve or disapprove it based upon an order of active service date list they maintained.  Generally, for combat arms MOSs in FY96, they did not approve early retirement for soldiers with much less than      17 years of active federal service.

CONCLUSIONS:

1.  The board concludes that an injustice exists in this case.  The applicant was an above average soldier who was selected to be an instructor at the NCO Academy, Fort Campbell, KY.  He had no record of any disciplinary actions prior to this incident, aside from a summarized Article 15 that was brought to light at his Chapter 14 board hearing.

2.  At the time the bar to reenlistment was initiated, the civilian charge of possession of drug paraphernalia had already been dropped, yet the bar packet that went to the commanding general and later to PERSCOM made no note that it was no longer a valid charge.

3.  The NCO Academy’s later notification to the commanding general of the pending Chapter 14 action also listed this invalid possession of drug paraphernalia charge.  It also downgraded the applicant’s service record by recording as his awards only the Army Service Ribbon and the National Defense Service Ribbon and failing to include the far more important Army Commendation Medal 2d oak leaf cluster or Southwest Asia Service Medal.

4.  The NCO Academy continued with the Chapter 14 action, which was based upon commission of a serious offense and conviction by a civilian court even after the last charge from the civil arrest had been set aside.  That board found the preponderance of the evidence failed to substantiate any of the allegations charged from the Chapter action and the bar to reenlistment, to include his “failure” to notify the Army of his confinement, and recommended his retention in service.  The commanding general approved the board’s findings and recommendation.

5.  After the commanding general approved the applicant’s retention, the duty status DA Form 4187s were corrected to show the applicant went from Present for Duty to Absent Without Leave to Confined Civil Authorities.  Instead of zero days lost time charged to the applicant by reason of the dismissal of all charges, he was now charged with 2 days of lost time.

6.  The applicant requested the removal of the bar to reenlistment.  His request was supported by the president and one member of his Chapter 14 board.  The appropriate authority denied his request based primarily upon his two days AWOL and for making false statements to military authorities, issues that the board had resolved in his favor.

7.  Telephonic advisory opinions noted that the applicant had no regulatory responsibility per se to notify his unit he was in confinement and that the efforts that were made to notify the Army were sufficient to satisfy his implicit responsibility.  If the proponent of Army Regulation 630-10 and the Chapter 14 board felt he met his responsibility to notify the Army of his confinement, it would be inequitable not to excuse his absence as unavoidable.

8. His commanders may have been legally correct in continuing to keep the bar to reenlistment in effect.  The Board, however, finds that there is an inequity in penalizing the applicant through the means of one administrative proceeding (a bar to reenlistment) on charges that another administrative proceeding (the Chapter 14 board) had previously determined to be unfounded.

9.  Had the bar to reenlistment been removed, it is reasonable to presume the applicant would have reenlisted and served honorably to his 20th year or until such time as he may have become eligible for an early retirement.

10.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

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

     a.  Showing that the applicant’s entire period of unauthorized absence (2 days by his personnel records; 8 days by his finance records) be excused as unavoidable;

     b.  reimbursing the applicant for any and all lost pay due to this adjustment;

     c.  showing the applicant’s bar to reenlistment was lifted;

     d.  showing the applicant extended his current enlistment for 30 days (without
entitlement to pay and allowances), making his ETS 2 October 1996 and, notwithstanding PERSCOM’s telephonic advisory opinion of 19 November 1998, making him eligible for a 15-year early retirement effective 1 October 1996; and

     e.  showing that applicant retired for length of service, under the Temporary Early Retirement Authority, on 30 September 1996, transferred to the Army Reserve Control Group (Retired), and was placed on the retired list on 1 October 1996 in pay grade E-6.

2.  The Army has an established program to counsel retiring soldiers on the rights, benefits, and privileges afforded as a result of military retirement.  Retirement Services Officers (RSO) are available at most major Army installations to provide a retirement briefing, which includes information on the Survivor Benefit Plan (SBP).  The applicant is advised to contact his nearest RSO (list enclosed ) as soon as possible to facilitate a smooth transition to retired status.

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

BOARD VOTE:  

RVO____  KAK____  LE______  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-10165	
SUFFIX		
RECON		
DATE BOARDED	19981223	
TYPE OF DISCHARGE	HD 	
DATE OF DISCHARGE	960930	
DISCHARGE AUTHORITY	AR 635-200 Chapter 4	
DISCHARGE REASON	A03.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	100.3	
2.	136.00	
3.		
4.		
5.		
6.