MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 February 2003
	DOCKET NUMBER:   AR2002074124

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Allen L. Raub		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:  That the Board make a determination that Section 632 of the Department of Defense Authorization Act of 1996 (Public Law 104-106), enacted on 10 February 1996, not be applied retroactively to deprive him of his Reserve retired pay and associated benefits.  In the alternative, he requests that his dismissal be set aside as a matter of clemency.

APPLICANT STATES:  In effect, that Public Law 104-106 may act to deprive him of the Reserve retirement for which he qualified in February 1995, a full year prior to enactment of the law.  He adds that he and his wife have serious medical problems which necessitate the granting of relief.  In support of his application, he submits:  an 8-paragraph explanation of why relief is warranted; a copy of a 3 February 1995 letter from the US Army Reserve Personnel Center, subject:  Notification of Eligibility for Retired Pay at Age 60; a copy of an opinion of the US Army Court of Criminal Appeals, dated 20 June 2000, wherein his conviction and sentence were affirmed, and the court declined to address the question of his eligibility for retired pay in light of 10 U.S.C. § 12740; a copy of a supplement to petition for a grant of review before the United States Court of Appeals for the Armed Forces; a copy of the United States Court of Appeals for the Armed Forces order denying petition for a grant of review; a copy of a 15 June 2001 petition for clemency to the Secretary of the Army; a copy of the Secretary of the Army’s 6 December 2001 denial of clemency and reaffirmation of the applicant’s dismissal; and copies of various documents outlining the medical problems experienced by the applicant and his wife, to include a stipulation of expected testimony from the applicant’s wife’s oncologist.

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

He was commissioned a second lieutenant in the Regular Army on 19 May 1973. On 1 July 1976, he was honorably released from active duty (REFRAD) and assigned to the United States Army Reserve Control Group (USAR).  He then served without incident in a variety of positions in the USAR Active Guard Reserve (AGR) Program culminating in his appointment as Professor of Military Science (PMS) at Wofford College, Spartansburg, South Carolina, in July 1993.

On 3 February 1995, the applicant received his 20-year letter stating that he had the required years of qualifying service, thereby making him eligible for non-regular retired pay when he reached 60 years of age.

On 4 June 1998, the applicant was convicted by a general court-martial of 7 specifications of stealing cash in excess of $100.00, the property of Wofford College and/or the United States Government, and three specifications conduct unbecoming an officer for directing a subordinate to falsify rental car receipts, stealing stacks of newspaper in the presence of a Reserve Officers Training Corps (ROTC) cadet, and of wrongfully and dishonorably altering the grades of an ROTC cadet.  He was sentenced to be reprimanded and dismissed from the United States Army.  The sentence was approved on 22 September 1998.

On 20 June 2000, the United States Army Court of Criminal Appeals affirmed the sentence.  

On 7 March 2001, the United States Court of Appeals for the Armed Forces denied the applicant's petition for a grant of review.

On 2 June 2001, the Secretary of the Army approved the applicant's dismissal from the Army.  On 6 December 2001, the Secretary of the Army reviewed the applicant's request for reconsideration and reaffirmed his earlier decision approving the dismissal of the applicant from the Army.

On 31 January 2002, the applicant was dismissed from the Army by order of a general court-martial.

Title 10, United States Code, Section 12740, Subtitle E – Reserve Components, Chapter 1223, Retired Pay for Non-Regular Service, states;

A person who – 
    (1)  is convicted of an offense under the Uniform Code of Military Justice (chapter 47 of this title) and whose sentence includes death; or
    (2)  is separated pursuant to sentence of a court-martial with a dishonorable discharge, a bad conduct discharge, or (in the case of an officer) a dismissal,
is not eligible for retired pay under this chapter.

It further states that the above provisions shall apply with respect to court-martial sentences adjudged after the date of the enactment of this Act (February 10, 1996).

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 carefully reviewed the applicant’s entire service record to include all of his faithful and honorable service as well as his misconduct.  The Board determined that, by his illegal and dishonorable actions, the applicant violated the trust and confidence placed in him as a commissioned officer.  His acts of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the dismissal appropriately characterizes the misconduct for which the applicant was convicted.

2.  On 3 February 1995, the applicant received his “20-year letter” stating that by virtue of having completed the required years of service, he would be eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10 US Code Chapter 1223.  Section 12740 of that chapter, which was enacted on 10 February 1996, states that officers separated with a dismissal pursuant to a sentence of a court-martial adjudged on or after 10 February 1996 are not eligible for retired pay under Chapter 1223.  Whether the applicant’s non-regular retirement will be denied will not be determined until he applies for retired pay at age 60 in 2011.  Currently, there is no record for the Board to correct in that regard.  As the Board does not render advisory opinions, the applicant’s request for correction concerning his entitlement to non-regular retired pay and related benefits is premature.

3.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  After careful consideration of the applicant’s overall military record and his personal/family medical problems, the Board found no cause for setting aside his dismissal in the interest of clemency.

4.  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.

5.  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

__jhl___  __le____  __alr___  DENY APPLICATION

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

INDEX

CASE ID	AR2002074124	
SUFFIX		
RECON		
DATE BOARDED	20020220 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE	20020131	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.0300	
2.	105.0100	
3.		
4.		
5.		
6.