MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:          30 September 2003
		DOCKET NUMBER:  AR2003083763

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret V. Thompson		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 he be promoted to the rank of Master Sergeant (MSG/E-8) and retired from active duty in that rank; and that he be paid travel pay from Fort Sill, Oklahoma, to his home of record (HOR) in Louisiana, and from his HOR to Fort Polk, Louisiana, and finally, from Fort Polk to his HOR.

APPLICANT STATES:  That he was convicted by a General Court-Martial (GCM) on 7 January 1998 and placed on excess leave.  On 10 August 2000, the Army Court of Criminal Appeals (ACCA) set aside the findings and sentence and authorized a rehearing.  A rehearing was not held, the charges were dismissed, and all rights, privileges, and property were restored.  During the intervening period of time, he was "passed over for promotion several times."  He adds that, based upon his service record, he certainly would have been promoted to E-8 by now.

In support of his application, the applicant provides:  three letters of support; a copy of the 10 August 2000 Memorandum Opinion, ACCA; a copy of Part I of his Enlisted Record Brief (DA Form 2A), dated 23 February 1998; a copy of his Personnel Qualification Record (DA Form 2-1), with a review date of 8 March 1995; two copies of Orders 004-13, Headquarters, US Army Field Artillery Center and Fort Sill, dated 4 January 2001; two copies of Orders 029-13, Headquarters, US Army Field Artillery Center and Fort Sill, dated 29 January 2001; a copy of Orders 079-001, 5th Personnel Services Battalion, dated 20 March 2001; two copies of General Court-Martial Order Number 8, Joint Readiness Training Center and Fort Polk, dated 16 March 2001; two copies of Action, Headquarters, Joint Readiness Training Center and Fort Polk, dated 16 March 2001, dismissing charges and restoring rights; two copies of Request and Authority for Leave (DA Form 31), dated 14 October 1998; a copy of FB (Fort Benning) Form 21, dated 7 March 1985, showing completion of Individual Infantry Training; an undated copy of an Army Infantry School Certificate of Achievement; a copy of a 5 April 1985 Army Infantry School Diploma for the Airborne Course; a copy of an 8 May 1985 letter of appreciation; a copy of a 1-22 September 1985 FB (Fort Bragg) Form 1064-24, Certificate of Achievement; a copy of an 11 January 1986 Certificate of Completion of the US Navy Survival, Evasion, Resistance and Escape Course; a copy of a 13 June 1985 - 17 December 1986 82nd Airborne Division Certificate of Service; a copy of Permanent Orders 103-131, Headquarters, 82nd Airborne Division, dated 8 June 1987; a copy of a DA Form 4950, Good Conduct Medal Certificate, 21 November 1984 - 20 November 1987; a copy of Permanent Orders 239-2, Headquarters, 82nd Airborne Division; dated 4 January 1988; a copy of DA Form 4872, Certificate of Promotion (to Sergeant SGT/E-5), dated 10 February 1988;a copy of a 2 July 1988 Letter of Commendation, with a 12 July 1988 endorsement; a copy of Orders 35-68, Headquarters, 82nd Airborne Division; a copy of a 4 August 1988 Certificate of Appreciation; a copy of a 12 April 1991 Certificate, US Department of Justice, 

Drug Enforcement Administration; a copy of a 12 April 1991 letter of appreciation; a copy of an 8 October 1988 Pre- Ranger Course Certificate of Achievement; a copy of an 8 October 1988 Scout Reconnaissance and Surveillance Training Certificate of Completion; a copy of a Primary Leadership Development Course Diploma, dated 23 December 1988; a copy of DA Form 1059 (Academic Evaluation Report), dated 22 December 1988; a copy of a 30 June 1989 Certificate of Achievement; a copy of a US Army Military Police School Diploma, dated 26 April 1991; a copy of a Certificate of Training for the Small Arms Instructors Range Operations Course, dated 6 - 19 June 1993; a copy of DA Form 1059 (Academic Evaluation Report), dated 19 June 1993; a copy of a DA Form 638-1 (Recommendation for Award), dated 4 March 1995; a copy of DA Form 4980-18, Army Achievement Medal Certificate, dated 8 February 1995; a copy of DA Form 4980-18, Army Achievement Medal Certificate, dated 15 February 1995; a copy of a DA Form 638-1 (Recommendation for Award), dated 21 November 1994; a copy of DA Form 4980-18, Army Achievement Medal Certificate, dated 10 March 1995; a copy of a 31 July - 10 August 1994 Certificate of Appreciation; a copy of a DA Form 638-1 (Recommendation for Award), dated 15 February 1995; a copy of an undated Certificate of Training for a 40-hour reenlistment course; a copy of a 19 April 1995 Certificate of Training; a copy of DA Form 1059 (Academic Evaluation Report), dated 19 September 1995; a copy of a Basic Noncommissioned Officer Course Diploma, dated 19 September 1995; a copy of a DA Form 638-1 (Recommendation for Award), dated 29 January 1996; a copy of DA Form 4980-18, Army Achievement Medal Certificate, dated 8 February 1996; a copy of a Jumpmaster Course Diploma, dated 2 February 1996; a copy of a 23 January 1996 Certificate of Completion; a copy of a 2 February 1996 Memorandum, Subject:  Completion of Jumpmaster Class 703; a copy of Permanent Orders 159-22, 5th Personnel Services Battalion, dated 7 June 1996; a copy of a 3 April 1996 Fort Polk Certificate of Achievement; a copy of Orders 149-148, 5th Personnel Services Battalion, dated 28 May 1996; a 21 June 1996 144th Airborne Rifle Brigade Certificate of Achievement; an undated copy of DA Form 4980-14, Army Commendation Medal Certificate, for the period 15 September 1996 - 1 November 1996; a copy of a DA Form 638-1 (Recommendation for Award), dated 20 September 1996; and copies of two of DA Forms 2166-7 (NCO Evaluation Report) for the periods 95/03 - 96/02 and 96/03 - 97/02.

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

He was a Regular Army Staff Sergeant (SSG/E-6) with a date of rank of 1 July 1996.  In 1996, he was assigned to the 1st Battalion, 509th Infantry, Fort Polk, with duty as an Infantryman.  However, his Enlisted Record Brief indicates that, by 23 February 1998, his primary military occupational specialty (MOS) had changed to 71L3P4A, Administrative Noncommissioned Officer.

According to the ACCA, in December 1996, the applicant and his wife took their 8-month old daughter to the Army hospital where it was discovered that she had a spiral fracture of the arm.  Spiral fractures in nonambulatory children are often indicative of physical abuse.  The applicant explained that the fracture must have occurred the previous night while he was carrying the child to the bedroom and tripped and fell with her.  However, medical records indicated that the child had been seen in June 1996 for a spiral fracture of the leg and further examination disclosed additional previously unknown evidence of broken bones and other trauma, including multiple broken ribs, a fractured wrist, and a fractured skull.  Medical authorities contacted the Criminal Investigation [Division] Command (CID) and an investigation was opened into physical child abuse.

In January 1998, the applicant was tried by a GCM for seven specifications of child abuse and convicted of one specification.  He was sentenced to a Bad Conduct Discharge (BCD), confinement for 3 months, total forfeiture of all pay and allowances, and reduction to Private (PV1/E-1).  He was reduced to Private on 21 January 1998 and he was transferred to Fort Sill for service of his sentence to confinement.

The applicant was in confinement from 7 January 1998 through 17 March 1998.  Upon completion of his sentence, he was released from confinement and, after a period of time, he was placed on excess leave to an address in New Orleans, Louisiana, awaiting appellate review of his conviction.  On 10 August 2000, the ACCA set aside the findings and sentence in the applicant's case, on the basis of constitutional error, and authorized a rehearing.  In a footnote, the Court commented that, absent the error, there existed sufficient evidence of the applicant's guilt.

The applicant was restored to the rank of SSG and ordered to report to Fort Polk for a rehearing.  However, at Fort Polk, the GCM Convening Authority (GCMCA) dismissed all charges and the applicant was offered the choice of continuing his active duty career or being separated with an Honorable Discharge.  He chose separation.

On 22 March 2001, the applicant was separated with an Honorable Discharge under the provisions of chapter 4, Army Regulation 635-200, by reason of completion of required active service.  He had 6 years, 9 months, and 1 day of creditable active Federal service on his period of service, and 8 years, 1 month, and 20 days of prior creditable active Federal service.  He had no lost time and was separated in pay grade E-6.

In the processing of this case, an advisory opinion was obtained from the Promotions Branch, US Total Army Personnel Command (PERSCOM) which states that the applicant was considered for promotion to Sergeant First Class 

(SFC/E-7) by the Calendar Year 1998 SFC Promotion Board (29 May - 26 June 1998) in MOS 71L.  He was not selected and the Promotion Branch recommended that his request for promotion to MSG be denied.

The applicant was provided a copy of the PERSCOM advisory opinion.  In rebuttal, he argued that he could not have been considered for promotion to SFC in 1998 because he was flagged and convicted by a GCM in January 1998.  He also argued that he was an infantryman, not an Administrative Noncommissioned Officer.  He did concede that he underwent an MOS/Medical Retention Board because of a back condition in late 1997, but that he did not know the results of that board.  He also stated that he was given 5 days to choose whether to remain in the Army or get out and he adds that, since he was a residential homebuilder at the time, and in the middle of a contract to build a home, he chose to separate. He then modified his application request to seek retirement as an SFC/E-7 or reinstatement on active duty in that grade.

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, it is concluded:

1.  The applicant was properly charged with child abuse and underwent trial by a GCM.  He was convicted and transferred from Fort Polk to Fort Sill for service of his sentence to confinement.  Upon completion of his sentence to confinement, he was properly placed on excess leave pending completion of his appellate review.  When his conviction was set aside, he was properly restored to his former rank and ordered to report to Fort Polk (from New Orleans, approximately 260 miles) for possible retrial.

2.  At Fort Polk, the GCMCA elected not to retry the applicant and offered him the option of continuation on active duty or separation.  As the applicant explained in his rebuttal to the PERSCOM advisory opinion, because of his civilian work situation, he chose to be separated and was honorably discharged.  As a point of clarification, the Board notes that other forces may have impacted his decision to separate.  The GCMCA's decision not to retry him did not serve to remove the applicant from further legal peril had he chosen to remain on active duty.  Subject only to the statute of limitations, the applicant could have been retried if retrial became practicable at a later date.  Also, had he remained on active duty, the applicant could have been subjected to an administrative elimination proceeding which may very well have resulted in a less than honorable characterization of service.

3.  The applicant freely chose to separate from the active Army.  In so doing, he voluntarily made an affirmative decision to end his military career, to not seek promotion reconsideration, or an active duty retirement.  Had he elected to continue his career, all of these issues would have been resolved through normal personnel channels.

4.  As to the matter of the applicant's promotion consideration by the Calendar Year 1998 SFC Promotion Board, the Board notes that whether or not he was actually considered for promotion is irrelevant; he should have been flagged, thereby making any positive action, had it occurred, erroneous.

5.  The Board finds no error or injustice in this case.  The Army was correct in charging the applicant with child abuse; the court-martial process, to include the appellate process, was correctly allowed to run its course; and, after the conviction was set aside, the applicant's rank and rights were properly restored.

6.  The applicant has not presented any evidence that he was denied any form of travel pay resulting from his movement from Fort Polk to Fort Sill, New Orleans, to Fort Polk, to Raceland, Louisiana.  The Board notes that his transfer from Fort Polk to Fort Sill would have been by prisoner transportation and, thus, not reimbursable.  Likewise, his placement on excess leave from Fort Sill to New Orleans would have been at his expense.  The only reimbursable travels costs would have been his being ordered to Fort Polk for retrial and his separation at Fort Polk and travel to Raceland.  The applicant has not shown that he was not properly reimbursed.

7.  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

__rjw___  __mhm___  __mvt___  DENY APPLICATION

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

INDEX

CASE ID	AR2003083763	
SUFFIX		
RECON		
DATE BOARDED	20030930	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.0000	
2.		
3.		
4.		
5.		
6.