MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 July 2000
	DOCKET NUMBER:   AR1999026074

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

	Mr. Carl W. S. Chun
Mr. Robert J. McGowan		Director
Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that his retirement date of 31 December 1992 be honored and that he be retired as of that date and paid all applicable back pay and allowances from 1 January 1993 to present.

APPLICANT STATES:  In effect, that he served on active duty from 1972 to 1992 and retired on 31 December 1992 as a sergeant first class (E-7); that his retirement order was illegally revoked and that he is now the subject of court-martial charges.

COUNSEL CONTENDS:  That the applicant’s 31 December 1992 retirement is valid; that the revocation action pertaining to his retirement is invalid; that the court-martial charges against him should be withdrawn; and that he should be retired as on 31 December 1992.

EVIDENCE OF RECORD:  The applicant's military records show:

He was an E-7 stationed at Fort Bragg, North Carolina in 1992.  He requested retirement for length of service and received retirement orders on 25 September 1992.  While awaiting retirement, he tested positive for illegal drug use during a routine unit urinalysis test.  His commander informed him that he was being flagged and that court-martial charges would be preferred against him.  He was also ordered not to depart the unit on permissive temporary duty (TDY) or terminal leave.  On 30 November 1992, he disobeyed his commander and signed out of the unit on terminal leave.  Since he was not authorized to take leave, his unit placed him in an absent without leave (AWOL), and later, a deserter status.  Court-martial charges were preferred against him on 21 December 1992 and his unit notified HQDA (Headquarters, Department of the Army) for permission to revoke the applicant’s retirement orders.  Permission was granted and, on 28 December 1992, the applicant’s retirement orders were revoked.

The applicant was working outside of the Continental United States from 1993 to 9 October 1998 when he returned to attend his father’s funeral.  He was apprehended at Atlanta International Airport and returned to military control at Fort McPherson, Georgia.  He was then transferred to the Personnel Control Facility, Fort Knox, Kentucky, and then to Fort Bragg.  During an Article 32 hearing at Fort Bragg, the applicant’s defense counsel argued that the applicant’s retirement order was not properly revoked and, therefore, he was not retained on active duty and not subject to court-martial jurisdiction.  Defense counsel made this argument based upon testimony from a personnel specialist at Fort Bragg who testified that she revoked the applicant’s retirement order in accordance with procedures outlined in AR 635-200, paragraph 12-15, after having received approval from HQDA.

On 16 August 1999, the applicant was tried by a general court-martial on charges of desertion while pending disciplinary action for a positive urinalysis from 30 November 1992 to 9 October 1998; willfully disobeying his superior commissioned officer to not sign out on permissive TDY or terminal leave on 30 November 1992; wrongfully possessing a retired ID card on 9 October 1998; attempting to wrongfully possess a retired ID card on 6 January 1999 and 30 March 1999; and making a false official statement between 6 January and 1 February 1999.

In accordance with a pre-trial agreement, the applicant pleaded guilty to desertion and willfully disobeying his commander; all other charges and specifications were dismissed.  The applicant was convicted and sentenced to a Bad Conduct Discharge, to be confined for 9 months, total forfeiture of all pay and allowances, and reduction to E-1.  In accordance with his pre-trial agreement, the court-martial convening authority approved only so much of the applicant’s sentence as provided for reduction to the grade of E-4.

Army Regulation 635-200, paragraph 12-7, provides that enlisted soldiers who have 20 or more years of creditable Federal service and have completed all required service obligations may apply for retirement to the appropriate retirement authority using DA Form 2339.  Paragraph 12-18c states that, once a retirement order has been issued, it will not be amended or revoked except for extreme compassionate reasons, the convenience of the Government, or when a change in the soldier’s status prevents retirement on the specified date.  In order to revoke a retirement order, the request must be forwarded to HQDA with full substantiating documentation.  Paragraph 12-15 of AR 635-200 discusses withdrawal of a soldier’s application for retirement.

In the processing of this case, an advisory opinion was obtained from the Staff Judge Advocate, US Total Army Personnel Command (PERSCOM), Alexandria, Virginia, which states that the applicant’s commander filed court-martial charges against him and requested approval from HQDA to revoke his retirement orders for the convenience of the Government.  Permission was granted and the retirement authority at Fort Bragg revoked the orders.  The applicant and his counsel were provided an opportunity to respond to the advisory opinion, but did not do so.

Also in the processing of this case, an advisory opinion was obtained from the Senior Legal Advisor, Army Review Boards Agency, Alexandria, Virginia, which states that the applicant’s trial by court-martial was warranted by the gravity of the offenses charged.  His conviction was effected in accordance with applicable law and regulations.  Furthermore, his contentions relate to procedural and jurisdictional matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for his requested relief.  The applicant and his counsel were provided an opportunity to respond to the advisory opinion, but did not do so.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant, while on active duty as a sergeant first class, tested positive for illegal drug use.  Although he was scheduled to be separated by reason of retirement on 31 December 1992, his commander flagged him, preferred court-martial charges against him, and sought and received approval to revoke the retirement orders.  The applicant knew of these actions and was ordered not to depart from the unit.  He disobeyed and departed the unit on 30 November 1992 and was not returned to military control until 9 October 1998.

3.  The applicant's contentions relative to the legality of the revocation of his retirement orders and his being subject to trial by court-martial were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for granting the relief sought.

4.  The applicant’s trial by court-martial was warranted by the gravity of the offenses charged.  His conviction was effected in accordance with applicable law and regulations, and the sentence appropriately reflects the terms of the pre-trial agreement agreed to by the applicant and the Government.

5.  The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jlp____  __mhm__  __jea____  DENY APPLICATION

						Carl W. S. Chun
				      Director, Army Board for Correction
					         of Military Records

INDEX

CASE ID	AR1999026074	
SUFFIX		
RECON		
DATE BOARDED	20000713	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	136.0100	
2.		
3.		
4.		
5.		
6.