BOARD DATE: 1 May 2018 DOCKET NUMBER: AR20160006244 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 1 May 2018 DOCKET NUMBER: AR20160006244 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 May 2018 DOCKET NUMBER: AR20160006244 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his records to show he was honorably retired, as opposed to showing he was discharged for misconduct. He also requests a personal appearance hearing. 2. The applicant states: a. He should be allowed to retire for his years of service and his sex offense charge should be dismissed. He wants to support his family and not be forced out of his home under Georgia State law. b. After seeking legal advice, it appears his court-marital is being used to deny his retirement. However, the court-marital board did not discharge him in order to allow him to retire for his years in service. He was never given time to seek legal counsel or process out of the service. He has never seen his separation packet nor was he notified of the retirement packet. 3. The applicant provides a retirement packet, consisting of: * DD Forms 214 (Certificate of Release or Discharge from Active Duty), for the periods ending 8 July 1991, 15 June 1998, 25 December 1998, and 19 October 2003 * Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 7 June 2007 * DD Form 2707 (Confinement Order), dated 14 March 2013 * DA Form 4187 (Personnel Action), dated 7 June 2013 * DA Form 2339 (Application for Voluntary Retirement), dated 26 March 2014 * DA Form 5016 (Chronological Statement of Retirement Points), dated 11 February 2015 * DA Form 2A (Personnel Qualification Record – Part I) CONSIDERATION OF EVIDENCE: 1. The applicant was born on 12 December 1959 and will reach 60 years of age on 12 December 2019. 2. Following prior service in the U.S. Marine Corps, the applicant enlisted in the South Carolina Army National Guard (SCARNG) on 21 Feb 1985. He was subsequently transferred to the U.S. Army Reserve (USAR) Control Group on 30 May 1987. 3. The applicant was ordered to active duty for an Active Guard Reserve (AGR) tour on 19 October 2003. He continued his service on active duty through a series of extensions and reenlistments. He was promoted to the rank/grade of sergeant first class/E-7 on 1 September 2006. 4. The applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 7 June 2007. 5. General Court-Martial Order Number 9, issued by Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon, GA on 12 June 2013, shows the applicant was found guilty of violating the following Articles under the Uniform Code of Military Justice (UCMJ): a. A single specification of Charge I, for violating Article 120 of the UCMJ; specifically, for engaging in a sexual act with an individual who was substantially incapacitated on or about 24 March 2012. b. A single specification of Charge II, for violating Article 107 of the UCMJ; specifically, for making a false statement to an Special Agent, with intent to deceive on or about 25 March 2012. c. His sentence included his reduction in rank/grade to private/E-1, forfeiture of $1516.20 pay per month for three months, and confinement for 90 days. 6. A DA Form 2339, dated 26 March 2014, shows the applicant submitted an application for voluntary retirement for at least 20 years of active federal service. His retirement packet included a DA Form 4187, dated 7 June 2013, which shows his commander recommended approval of his request. 7. The applicant was considered for separation by an administrative separation board; however, the results of the administrative separation board are not available for review. It appears the board recommended the applicant's separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14. 8. A memorandum from the Assistant Secretary of the Army for Manpower and Reserve Affairs, dated 7 October 2015, shows that based on the recommendation of an administrative separation board, the applicant would be separated: a. Under the provisions of Army Regulation 635-200, chapter 1, paragraph 1-19f, with an under honorable conditions (general) discharge. b. Under the provisions of Army Regulation 635-200, paragraph 14-12c, with a narrative reason for separation of commission of a serious offense. 9. The applicant was discharged on 15 January 2016, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense). His DD Form 214 shows he was separated in the rank/grade of private/E-1, following his completion of 11 years, 11 months, and 29 days of active service. His DD Form 214 further shows he was credited with completing 9 years, 6 months, and 2 days of prior active service, for a total of 21 years, 6 months, and 1 day of active service. REFERENCES: 1. Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-19f (Authority to approve or disapprove separation), provides that except when discharged pursuant to the approved sentence of a court-martial or for physical disability, any Soldier who has completed 18 or more years of active Federal service will not be involuntarily discharged or released from active duty without approval at the Headquarters, Department of the Army (HQDA) level. b. Chapter 12 (Retirement for Length of Service) provides that Soldiers who have completed 20, but less than 30 years of active federal service in the United States Armed Forces may, at the discretion of the Secretary of the Army, be retired at his or her request. The Soldier must have completed all required service obligations. Soldiers are eligible but not entitled to retire upon request. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 2. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states that applicants do not have a right to a formal hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. Although the applicant requested to personally appear before the Board, there was sufficient evidence available for fair and impartial consideration of his case. 2. The applicant contends the administrative separation board did not discharge him in order to allow him to retire for his years of service. He also contends he was never given time to seek legal counsel or process out of the service. 3. The evidence of record shows the applicant was tried and found guilty by a general court martial on 12 June 2013. He requested retirement on 26 March 2014, with his commander's approval. 4. The governing regulation requires that the separation of individuals with over 18 years of service be approved at HQDA. It also states that a court-martial sentence that does not include a punitive discharge does not preclude an individual from being processed for administrative separation at any time after sentencing. 5. His request for retirement was properly referred to the HQDA level for consideration. The Assistant Secretary of the Army for Manpower and Reserve Affairs determined, based on the results of his administrative separation board, that he did, in fact, commit a serious offense and directed his separation with an under honorable conditions (general) discharge. 6. His administrative separation appears to have been accomplished in compliance with applicable regulations with no indication of procedural errors, which would have jeopardized his rights. Furthermore, his case was viewed by every level of command, resulting in a final disposition by the Assistant Secretary of the Army for Manpower and Reserve Affairs. 7. The applicant further provides no evidence that the chain of command acted improperly or arbitrary. Based on the seriousness of his offense, he compromised the special trust and confidence placed in him as a Soldier and as a noncommissioned officer. These acts of misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006244 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006244 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2