MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 August 2000
	DOCKET NUMBER:   AR1999028748

	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		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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 rank and pay grade be restored to Staff Sergeant/E-6 (SSG/E-6) and his separation documents be corrected to show this restoration.

APPLICANT STATES:  In effect, that the rank and pay grade listed in his discharge documents incorrectly list his rank and pay grade as Private/E-1 (PV1/E-1).  He claims that his reduction was improper because he was never brought before a board nor was he ever punished under any provisions of the Uniform Code of Military Justice (UCMJ) that resulted in a reduction to his rank.  He includes the enclosed documents in support of his application.  These documents include a copy of his Department of Defense (DD) Form 214 (Certificate of Release or Discharge); a copy of his Military Identification (ID) Card; a statement from the an official custodian of his Military Personnel Records Jacket (MPRJ) that certifies that the applicant’s file contains no record of Nonjudicial Punishment (NJP), under the provisions of Article 15 of the UCMJ, or court-martial; and a copy of his 1993 promotion order to SSG/E-6.  

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

The applicant entered the Regular Army on 5 June 1989 and served until 
31 March 1999 when he was discharged, under the provisions of chapter 4, Army Regulation 635-200, by reason of completion of required active service. 

The evidence of record shows that on 14 March 1996 the applicant was convicted of unlawful confinement and armed robbery by a civil court in Alberta, Canada and sentenced to 8 and ½ years of civil confinement.  Based on this civil conviction, the applicant was reduced from the rank and pay grade of SSG/E-6 to PV1/E-1, effective 14 March 1996.  

On 14 September 1998, the applicant was paroled and returned to military control.  He was assigned to the Special Processing Company of the Personnel Control Facility (PCF) at Fort Knox, Kentucky.  

On 23 October 1998, the PCF commander notified the applicant by letter that he was recommending the applicant’s discharge, under the provisions of paragraph 14-5 of Army Regulation 635-200 based on the applicant’s conviction by a civil court .  The letter also advised the applicant of the rights available to him in connection with this action.  The applicant acknowledged receipt of this notification letter the same day.  

On 26 October 1998, the applicant departed the PCF on excess leave after indicating his understanding that he would be contacted further in regard to his discharge processing.  

On 17 November 1998, the PCF commander initiated the separation action on the applicant and recommended the applicant receive an under other than honorable conditions discharge.  The PCF commander cited the applicant’s civil conviction and subsequent civil confinement as the basis for taking the action.  In his recommendation the commander also verified that the applicant had been reduced to the rank and pay grade of PV1/E-1 for misconduct, effective 14 March 1996, as a result of his conviction by a civil court.  

On 17 December 1998, the Garrison Commander of Fort Knox recommended approval of the proposed separation on the applicant and also recommended an under other than honorable conditions discharge.  

The record is void of information in regard to where the separation packet pertaining to the applicant was between the 17 December 1998, when the Garrison Commander prepared his 1st Endorsement recommendation and 22 March 1999, when a 2nd Endorsement was prepared by the Adjutant General (AG) of Fort Knox.  

The 22 March 1998 AG 2nd Endorsement returned the separation packet to the PCF commander.  The AG stated that, given the regulatory requirements outlined in paragraph 1-28 of Army Regulation 635-200 that prohibits retaining members beyond their ETS in order to process administrative separation actions, the applicant had erroneously been held beyond his adjusted expiration of term of service (ETS) of 1 January 1999.  Therefore, it was directed that the applicant be discharged as soon as possible, by reason of ETS, under the provisions of chapter 4, Army Regulation 635-200.

The evidence or record includes a DD Form 214, issued to the applicant upon his discharge.  This document verifies that the applicant was honorably discharged on 31 March 1999, in the rank and pay grade of PV1/E-1, after completing a total of 9 years, 6 months, and 3 days of creditable active military service and having accrued a total of 1138 days of time lost due to civil confinement. 

Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policy for enlisted promotions and reductions.  Paragraph 7-3 provides the policy for reduction for misconduct.  It states, in pertinent part, that a soldier convicted by a civil court (domestic or foreign) will be reduced according to appropriate rule in Table 7-2.  Rule 1 of Table 7-2 (Rules for Reduction for Misconduct) states, in pertinent part, that a soldier serving in any enlisted grade above PV1 E-1, who is sentenced to a year or more of confinement, will be reduced without referral to a reduction board.  It also indicates that an appeal is only authorized to correct an erroneous reduction. 

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

1.  The Board noted the applicant’s contention that he was erroneously reduced without the benefit of a board and that he was never the subject of any UCMJ punishment action.  However, after a careful review of the evidence of record and the independent evidence submitted by the applicant, the Board finds that the applicant’s claim lacks merit and these factors provide no basis for relief. 

2.  The evidence of record shows that the applicant’s reduction was proper and accomplished in accordance with the applicable regulation.  He was reduced as a result of his civil conviction and sentenced to a year or more of civil confinement.  The regulation specifically states that a reduction board is not necessary in this case and that an appeal is only appropriate if the reduction action was determined to be incorrect.  Therefore, the Board finds relief is not warranted in this case.  

3.  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 this requirement.

4.  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

__mvt ___  ___kwl__  ___elw __  DENY APPLICATION

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

INDEX

CASE ID	AR1999028748	
SUFFIX		
RECON		
DATE BOARDED	2000/08/22	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1999/03/31	
DISCHARGE AUTHORITY	AR 635-200 C4	
DISCHARGE REASON	ETS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  307	129.0500	
2.		
3.		
4.		
5.		
6.