PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  29 June 2000
	DOCKET NUMBER:   AR2000035180

	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. Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John M. Slone		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 to his retirement points and correction of the dishonorable discharge notation on his ARPC Form 606E, Retirement Points Statement.

3.  The applicant states that until the enactment of the National Defense Authorization Act for the Fiscal Year 1996, there was no prohibition for an officer to count his confinement time as good time for length of service calculation.  He provides a 16 November 1994 letter from the Headquarters, Air Force Military Personnel Center, Directorate of Personnel Program Management, Retirements and Separations Section, which states, “time spent in confinement by commissioned officers will be credited as active federal military service (good time).”

4.  The applicant’s military records show that he served as an enlisted member of the Army National Guard from 8 February 1966 to 14 July 1972.  After a 2 year break in service he enlisted in the USAR and rose the rank of Sergeant First Class by 1976.  His last enlisted position was that of a first sergeant for the Headquarters Company, 95th Training Division, Midwest City, Oklahoma.  He was commissioned as an officer in the USAR on 11 December 1976.  He served in troop program units (TPU) rising to the rank of Lieutenant Colonel in August 1989.  He was on active duty in Desert Shield and Desert Storm in Saudi Arabia from 7 October 1990 to 10 August 1992.  He was selected as the commander of the 11th Material Management Command (MMC) in Saudi Arabia in August 1991.

5.  The applicant was given a general court-martial (GCM) at Fort Stewart, Georgia, in April 1993.  He was found guilty of the charges of illegally selling or disposing of military property in Saudi Arabia to Saudi civilians for personal gain. The value of the military property illegally sold was in excess of $2,000,000.  The GCM also found the applicant guilty of making false official statements and violating general orders.  He was sentenced to dismissal from the Army, 7 years confinement, forfeiture of pay and allowances, and a fine of $65,000.  He was confined at the Fort Leavenworth disciplinary barracks on 23 April 1993 and paroled on 30 November 1995.  His sentence was served on 21 April 2000.  He was dismissed from the service

6.  According to Army Regulation 600-8-24, Officer Transfers and Discharges, paragraphs 1-21 and 5-17, an officer convicted and sentenced to dismissal by a GCM is not given any formal discharge certificate or characterization of service.  A dismissed officer is not dishonorably discharged.

7.  In a United States Court of Claims case, Borys v. United States, 201 Ct. Cl. 597, cert. (petition) denied, 414 U.S. 1001 (1973), precedence was established that confinement time for officers is not creditable service for retirement purposes.  “While confined by the military, (the officer) did not perform any active service on active duty in the active military service of the United States as required by the retirement statues.  Consequently, the period (of confinement) cannot be counted for retirement purposes.”

8.  Title 10, U.S. Code, section 972, was amended in February 1996, to provide that any period of confinement by civilian or military authorities may not be counted in computing, for any purpose other than basic pay, the officer’s length of service.  This amendment codified court precedence established and followed for more than 20 years.

CONCLUSIONS:

1.  The applicant was “dismissed” from the service, not dishonorably discharged. His ARPC Form 606E should be corrected by removing the dishonorable discharge notation and entering the word, “Dismissed”.

2.  According to court precedence cited above, officer confinement time is not creditable service for retirement purposes.  Based on this, the applicant cannot be awarded any retirement points or creditable time for retirement purposes for the period that he was confined.  This confinement time, with the exception of computation for basic pay purposes, is “lost time”.  The Air Force letter provided by the applicant on this point is not binding on the Army nor is it correctly based on law.

3.  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 for the individual concerned by removing the term “Dishonorable Discharge” from the ARPC Form 606E and entering the correct term, “Dismissed”.

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

BOARD VOTE:  

__JL___  ___MM___  _JS___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Joann Langston_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000035180	
SUFFIX		
RECON		
DATE BOARDED	20000629	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.135.02	Retirement Points	
2.		
3.		
4.		
5.		
6.