PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           17 October 2000                  
	DOCKET NUMBER:   AR2000046498

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Barbara J. Ellis		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 his Certificate of Release or Discharge from Active Duty, DD Form 214, be corrected to show the reason for his discharge as voluntary retirement; that the Joint Meritorious Unit Award (JMUA) be added to his DD Form 214; and that his retired grade be changed to Colonel, O-6.

3.  The applicant states that he received a General Officer Letter of Reprimand (GOLOR), which led to a show-cause letter being initiated.  He requested a Board of Inquiry, which was to have convened within 30 days of his request in mid-May 1993; however, after 4 months it had still not convened.  In the meantime, he received an unsolicited civilian job offer which he decided to accept.  He was told he was being considered for reassignment and he did not desire to leave the area for family reasons.  He submitted a request for immediate voluntary retirement and it was subsequently approved.  However, “unacceptable conduct” was entered as the reason for separation on his           DD Form 214.  He was told this was because his show-cause action was still pending.  His priority at the time was to get through the retirement process, so he took no further action and left for civilian life.  He states that he had an unblemished record of service, contribution and accomplishments until the unfortunate set of circumstances which led to the GOLOR and show-cause action occurred.  He requests his rank on the Retired List be changed to Colonel, as it would have been had he been allowed to normally retire.  He also provides the orders awarding the JMUA to his unit.  It was awarded after he had retired but for a period of time during which he was assigned to the unit.

4.  The applicant's military records are not available.  Information contained herein was obtained from alternate sources.

5.  The applicant entered active duty on 26 February 1970.  He was promoted to Colonel on 1 November 1992.  He was assigned to the U. S. Army Element, Ballistic Missile Defense Organization, Office of the Secretary of Defense on an unknown date.

6.  On 9 April 1993, final action was taken on a GOLOR the applicant was given for entering false weight information on his Officer Evaluation Report with intent to deceive when it was directed the GOLOR be filed on his Official Military Personnel File.  Apparently, based upon this GOLOR Headquarters, Department of the Army initiated elimination action and required the applicant to show cause why he should be retained on active duty.  The elimination paperwork is not available.

7.  On an unknown date, the applicant submitted a request for voluntary retirement.  His request for retirement is not available.  His request for retirement was approved.  Orders dated 28 September 1993 retired the applicant from active service effective 31 October 1993 and placed him on the Retired List in the rank and grade of Lieutenant Colonel, 0-5.  These orders show his unit as Army Element, Ballistic Missile Defense Organization, Office of the Secretary of Defense.  His DD Form 214 shows the separation authority as Army Regulation 635-100, chapter 4, paragraph 4-10d and the narrative reason for separation as “unacceptable conduct.”

8.  Military Personnel Awards memorandum 95-259, Office of the Secretary of Defense dated 13 November 1995 awarded the JMUA to the Ballistic Missile Defense Organization for the period 13 May 1993 to 19 June 1995.

9.  Army Regulation 635-100, in effect at the time, provided policies and procedures for separating officers, to include non-disability retirement, from active duty.  Chapter 5 governed eliminations.  It provided that the initiating official (such as the Commanding General, U. S. Total Army Personnel Command (PERSCOM)) would notify the officer in writing that elimination action was initiated and that he would be required to show cause for retention on active duty.  The officer would be advised that he could tender resignation in lieu of elimination, request discharge in lieu of elimination (Regular Army commissioned officers only), apply for retirement in lieu of elimination if otherwise eligible for voluntary retirement, or appear before a Board of Inquiry.  The officer had 30 days to acknowledge receipt in writing, to prepare a written statement or rebuttal or elect one of the four options.  The initiating official, on receipt of the officer’s statement or rebuttal and/or option selection, either closed the case, forwarded the appropriate application for action, or referred the case to a Board of Inquiry.  Boards of Inquiry were appointed by the appropriate general officer show cause authority (GOSCA) (i. e., the commander exercising general court-martial authority or any general or flag rank officer in command who has a judge advocate or legal advisor available).  The Board of Inquiry would be completed no later than 90 calendar days from the date the GOSCA was notified by PERSCOM to conduct the Board of Inquiry.  Delays would be coordinated with PERSCOM.  The GOSCA would then forward the Board of Inquiry proceedings to the appropriate major command (MACOM) within 30 calendar days after the board’s adjournment.  The MACOM would then forward the board’s proceedings to PERSCOM no later than 60 calendar days after the board’s adjournment.

10.  Army Regulation 635-100, chapter 4 concerned retirements.  Section II of that chapter (paragraphs 4-7 through 4-18) concerned voluntary retirements.  Paragraph 4-10d provided that officers who had 20 or more years of active federal service could request retirement in lieu of elimination on receipt of the memorandum of notification of impending elimination from the GOSCA.  

11.  Title 10, U. S. Code, section 1370, provides that in order to be eligible for voluntary retirement under any provision of this title in a grade above major, a commissioned officer must have served on active duty in that grade for not less than 3 years except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than 2 years in the case of retirements effective during the 9-year period beginning on 1 October 1990.

CONCLUSIONS:

1.  The DD Form 214 is normally a snapshot in time; that is, in the applicant’s case, it shows what existed as of 31 October 1993.  However, it would be appropriate to add the Joint Meritorious Unit Award to his DD Form 214 even though it was not awarded to his unit until 18 months after his retirement.  Since he was assigned to the unit for a time covered by the period of the award, he is entitled to receive the award.

2.  The Board concludes that it would not be in the interest of justice to show that the applicant was retired in the rank and grade of Colonel, O-6.  The normal statutory requirement is for a Colonel to have served in that rank for 3 years before becoming eligible for voluntary retirement in that rank.  The requirement was waived to 2 years during the drawdown period.  The applicant served only   1 year as a Colonel at the time of his retirement.  The Board notes that the applicant states he elected to retire because he did not want to relocate for family reasons. Therefore, he would have retired even if the show-cause action were not a factor without meeting even the temporarily-approved time-in-grade requirement to retire as a Colonel.

3.  Neither the applicant’s show-cause action nor his retirement paperwork is available.  Without these documents, the Board cannot determine what timelines were involved nor what exactly he requested or what exactly was approved.  This Board does note that the Board of Inquiry was not required to be completed within 30 days of his request for a Board of Inquiry as he states.  He had 30 days to elect his option, which then went to PERSCOM, which then went back down to the GOSCA, which then had 90 days to convene and complete the Board of Inquiry.  In the absence of evidence to the contrary, the Board presumes that the Army’s actions were conducted in accordance with law and regulations applicable at the time and that the DD Form 214 is correct as prepared in regards to the separation authority.

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

RECOMMENDATION:

1.  That the applicant’s DD Form 214 be amended to add the Joint Meritorious Unit Award.

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

BOARD VOTE:  

__rvo___  __lds___  __bje___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000046498	
SUFFIX		
RECON		
DATE BOARDED	20001017	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.	110.0	
3.	136.00	
4.		
5.		
6.