MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 March 1999                    
	DOCKET NUMBER:   AC97-09292
				   AR1999015591

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Roger W. Able		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 his records be changed to reflect he received an honorable discharge and that he be reinstated onto active reserve duty with his rank of Sergeant, E-5 restored as well as back pay.

APPLICANT STATES:  In the spring of 1991, he and his wife had a domestic argument that lead to both of them hitting each other, resulting in his wife suffering a stroke.  After her hospitalization, she was released to a rehabilitation facility.  While there, she developed a blood clot and died.  His in-laws pressed charges, he was prosecuted for manslaughter and in June 1991 he was found guilty of criminal negligent homicide.  His in-laws also sued the rehabilitation hospital and the treating physician for malpractice because the doctor’s actions, not his, led to his wife’s death.  (His in-laws won their lawsuit.)  He was sentenced to one year in the county jail, all his appeals were denied, but he only served 149 days in jail.  After his appeal was denied, action was taken to drop him from the rolls.  He was never notified of this nor was he given the opportunity to have a discharge board.  The Florida Army National Guard (FLARNG) also reduced him from Sergeant to Private and did not inform him of this action either. He was not given the opportunity to rebut this action.  He was relieved of his duties in July 1991, well before his appeal was complete.  People who commit crimes are presumed innocent and are given a hearing before adverse action is taken against them. 

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

After having had prior enlisted service in the Alabama Army National Guard, the Navy and Navy Reserve, back with the Army National Guard and the U. S. Army Reserve, he went back to the Alabama Army National Guard in 1985, transferred to the Florida Army National Guard in 1988 and was accepted for an Active Guard/Reserve (AGR) position in 1990.  

About June 1991, the applicant was convicted of criminally negligent homicide in the State of Alabama.

On 20 July 1991, the applicant was notified that he was being relieved from his duties as a Production Recruiter but would remain a member of the Full Time Recruiter Force until further notice.

On 3 December 1991, the State of Alabama, Circuit Court of Coffee County, sentenced the applicant to one year in the Coffee County Jail after he was convicted of criminally negligent homicide.  Sentence was to begin 6 November 1992.

On 24 July 1992, the Court of Criminal Appeals, State of Alabama affirmed the conviction.

On 10 November 1992, the District Attorney for the Twelfth Judicial Circuit of Alabama confirmed a conversation between himself and the FLARNG, noting that the applicant had begun his sentence on 6 November 1992.

On 16 November 1992, the Recruiting and Retention Manager, FLARNG, forwarded a memorandum to the Director, Military Personnel, FLARNG, requesting the applicant be discharged from the FLARNG.

On 9 January 1993, the Director, Military Personnel, FLARNG, acting for the Adjutant General, approved the applicant’s discharge from the FLARNG under the provisions of paragraphs 1-21, Army Regulation 135-178 and 8-5b of National Guard Regulation (NGR) 600-200.  He also approved his reduction to the grade of private under the provisions of paragraph 6-44d, NGR 600-200 and directed the applicant receive an uncharacterized discharge.  Since the applicant had more than 20 years of service, he would be transferred to the Retired Reserve.

The applicant was reduced to Private, E-1 effective 8 February 1993 by reason of being dropped from the rolls.  He was also discharged from the ARNG and relieved from active duty in an AGR status on this date.

On or about 17 June 1993, the applicant’s in-laws won their civil lawsuit.

In an undated memorandum, the applicant received notification that he was eligible for retired pay at age 60 (20-year letter).

Army Regulation 630-10 establishes procedures for reporting personnel dropped from the rolls (DFR).  In pertinent part, it states that an absentee can be DFRd if confined for 6 months or longer by civil authorities.

Army Regulation 135-178 establishes policies and procedures governing the administrative separation of enlisted soldiers from the Army National Guard of the United States (ARNGUS) and from the U. S. Army Reserve.  In pertinent part, it states that soldiers who are sentenced to confinement in a Federal or State penitentiary or correctional institution after having been found guilty of an offense by a civil court, and whose sentence has become final, whether or not actually confined, may be dropped from the rolls of the Army.  For purposes of this regulation, a conviction is final when the time for an appeal as of right has expired or final action on an appeal has been taken.  For ARNGUS soldiers, the State adjutant general is the authority to drop such soldiers from the rolls of the Army.  No notification procedure is required; no administrative board is required or authorized.  The State adjutant general will issue orders dropping the member from the rolls of the Army.  The soldier will be reduced to the grade of Private     E-1.  A characterization of service or other description of service is not authorized or warranted.
Section II of Army Regulation 135-178 states that when the reason for separation requires the Notification Procedure and/or the administrative board procedure, the commander will notify the soldier in writing that his or her separation has been recommended per this regulation.  Separation due to being dropped from the rolls requires neither procedure.

In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (SEE ATTACHED).

The applicant was afforded an opportunity to rebut this opinion but failed to respond within the given time frame.

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.  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 the aforementioned requirement.

2.  The applicant was notified that he was being relieved from his duties as a Production Recruiter in July 1991, after he was convicted of criminally negligent homicide.  Even though his appeal process was not completed at this time, his conviction occurred in June 1991.  He could no longer be “presumed innocent” and the Board believes the Army properly removed him from his duties as a recruiter at this time.

3.  Army Regulation 630-10 states that an absentee can be DFRd if confined for 6 months or longer by civil authorities.  Army Regulation 135-178 states that soldiers who are sentenced to confinement in a Federal or State penitentiary or correctional institution after having been found guilty of an offense by a civil court, and whose sentence has become final, whether or not actually confined, may be dropped from the rolls of the Army.  The words “can” and “may” imply discretionary actions, leaving the decision to drop a soldier from the rolls up to the separation authority (in this instance, the State adjutant general).  

4.  There is no evidence regulatory requirements were violated.  The applicant was sentenced to confinement in a State correctional institution (the State of Alabama having jurisdiction over the county jails in the state) for over 6 months.  No notification procedure is required; no administrative board is required or authorized.  Separation action was not initiated until the appeal process was completed.  Army Regulation 135-178 states the soldier will be reduced to the grade of Private E-1 and that a characterization of service or other description of service is not authorized or warranted.  In the applicant’s case, the State adjutant general chose to exercise his discretion.  Since regulatory requirements were not violated, and in the absence of extraordinary circumstances, the Board is reluctant to substitute its judgment for that of the State adjutant general.

5.  Although a civil lawsuit was successfully filed against the rehabilitation facility and physician who treated his spouse, his civil conviction has not been overturned.  Unless it is overturned, the conviction as stands was and is a proper reason for dropping the applicant from the rolls of the Army and discharging him from the Army National Guard.

6.  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:

__JEV___  __RWA___  __ALR___  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-09292/AR1999015591	
SUFFIX		
RECON		
DATE BOARDED	19990324	
TYPE OF DISCHARGE	UNCHAR	
DATE OF DISCHARGE	1993/02/08	
DISCHARGE AUTHORITY	NGR 600-200	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.	128.00	
3.	131.00	
4.		
5.		
6.