PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:            20 May 1999                  
	DOCKET NUMBER:   AR1998013582

	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. Loren G. Harrell		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest  M. Willcher		Chairperson	
	Mr. Hubert O. Fry Jr.		Member	
	Ms. Margaret V. Thompson 		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 discharge be revoked and that he be retired with 19 years, 8 months, and 14 days active duty.  He also requests promotion to pay grade  E-8 and that his reenlistment (RE) code be changed to RE-4.

3.  The applicant states in attached comments that he was denied the opportunity to reenlist or extend until he reached retirement eligibility and he was forced to leave the Army on the expiration of his term of service (ETS) with one-half separation pay. In July 1996 he was eligible for promotion but he was flagged and the flag was not lifted until 4 days after he left service.  Although his first civilian trial on Federal charges ended in a hung jury in July 1997, he was not allowed to extend beyond his August ETS.  After he was discharged he entered a plea in Federal court because he had no money to continue to defend himself.  The applicant acknowledges that if his request for retirement is approved he must pay back the separation pay.  He submits statements from several military and civilian personnel in support of his application.

4.  The applicant’s military records show that he reenlisted on 16 December 1980 with 3 years prior active service.  He reenlisted again on 5 August 1994 in the grade of E-7 for 3 years, which established his new ETS as 4 August 1997.  He was selected for promotion to E-8 by the 1994 Master Sergeant Selection Board.

5.  In March 1996 he received a relief for cause NCOER covering an 8 month period and was transferred to a different company at the installation headquarters. On 30 April 1996 the applicant was flagged pending an unspecified adverse action.  Other documents in the available record state that he was under Federal indictment for possession and conspiracy to distribute counterfeit currency.  Based on this suspension of favorable personnel actions his programmed promotion to E-8 on 1 July 1996 was held in abeyance.

6.  On 3 July 1997 the applicant applied for retirement effective 1 January 1998.  This was, in effect, also a request for extension of his current enlistment until 31 December 1997.  The unit commander recommended disapproval based on the pending civilian judicial proceedings.  The retirement services officer (RSO), in an attached memorandum, states that he faxed the retirement request to the Total Army Personnel Command (PERSCOM) on 15 July 1997.  The RSO also states that he never received a formal response to the request.

7.  Effective 4 August 1997 the applicant was separated from active duty in grade E-7 by reason of ETS under authority of Army Regulation 635-200, chapter 4, with an honorable discharge certificate.  His RE code is listed as RE-3.  He had 19 years, 7 months, and 17 days creditable service and no lost time.  He was authorized one-half separation pay.  Regulations then in effect authorized the applicant to receive full separation pay based on his ETS discharge.

8.  Documentation in the record shows that the unit commander removed the flag on 8 August 1997 effective 4 August 1997.

9.  A record of telephone conversation between an official at the installation and an official at the PERSCOM revealed that the PERSCOM acknowledged that they had failed to provide an official response to the applicant’s request for retirement.  It was said that the request would have always been slated for disapproval based on the command’s recommendation.

10.  The 10 December 1997 disapproval of the applicant’s request for retirement discusses force reductions and fiscal austerity as the reason for not approving his request.  It does not discuss the issue that he had been flagged pending trial on non-military Federal charges.

11.  In a statement from the unit first sergeant, who is still on active duty, he explains that the applicant constantly requested to reenlist or extend to complete the necessary service for retirement.  This first sergeant and the commander told him that he was not eligible for either option because he was flagged per the battalion commander’s instructions.

12.  Army Regulation 600-8-2 provides the policy for flagging actions.  It provides that a flag will be submitted when an unfavorable action or investigation is started against a soldier and will be removed when the soldier’s status changes to favorable.

13.  Title 10, USC, section 1176 provides that a regular enlisted member, who is within 2 years of qualifying for regular retirement, and is denied reenlistment, shall be retained on active duty until the member is qualified for retirement unless he is discharged under other provision of law.

14.  Title 10, USC, section 3914 provides that an enlisted member who has at least 20, but less than 30, years of service may, upon his request, be retired.

15.  Army Regulation 601-280 prescribes the Total Army Retention Program.  It provides, in pertinent part, that a soldier with a non-waivable disqualification may extend his enlistment if he has attained 18 but less than 20 years of Federal service.  The extension will not exceed the number of months necessary to complete 20 years of active service.  The regulation also provides the procedures for imposing a bar to reenlistment.  It provides that commanders do not have the authority to prevent a soldier’s reenlistment once he has attained 18 or more years of active duty to preclude the soldier from retirement eligibility.

16.  Army Regulation 635-200 provides for the administrative separation of soldiers. It provides that a soldier who has completed 19 or more years of active Federal service may apply for retirement.  It also provides that soldiers who are flagged are not precluded from submitting applications for retirement.  Additionally, soldiers who, at ETS, have completed 18 years of active Federal service, but less than 20 years, may be extended to reach retirement eligibility.

17.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes. RE-3 applies to soldiers who are not considered fully qualified for continuous service at time of separation, but the disqualification is waivable.  RE-4R applies to soldiers who retire for length of service with more than 15 years active Federal service.

18.  Additional documentation provided by the applicant subsequent to his application shows that he entered a plea agreement to the Federal charges and was sentenced on 30 March 1998, 3 months after he was eligible for complete retirement with 20 years of service.  The adjudged sentence included a fine and a period of probation without confinement.  The applicant also provides a voluntary request for excess leave status from his date of separation to his requested date of retirement if the Board does not approve back pay and allowances for that period.

CONCLUSIONS:

1.  There appears to be sufficient evidence of record that the applicant was eligible, wanted to, and tried to extend his enlistment past his ETS to the date he would have been eligible for a 20 year retirement.  Neither his unit nor his installation had the authority to deny this extension.

2.  His formal request for retirement, which automatically included an extension of service to reach the retirement date, was not appropriately acted on by the Department.  When a proper response was finally provided it did not appear to address the correct issues in denying his request.

3.  Although the applicant could not be involuntarily retained past his ETS for possible administrative separation board proceedings based on the result of his civil court action, he volunteered to extend his service past his ETS with the resulting risk of a less than honorable discharge and was denied.  The applicant does not appear to have separated on ETS to avoid the possibility of administrative board action.

4.  While the Board believes that the applicant is entitled to active duty credit for retirement purposes for the period 5 August through 31 December 1997, he did not perform duty during this time and the period in question should be accounted for as excess leave as requested by the applicant.

5.  Notwithstanding the applicant’s selection for promotion and 1 July 1996 promotion eligibility date, he was properly flagged from 30 April 1996 until his separation and is not entitled to promotion to E-8.

6.  The appropriate RE code for a member who retires with 20 years active service is 
RE-4 and he is entitled to have his RE code changed based on this Board action.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.   by revoking the discharge order of the individual concerned which separated him on 4 August 1997;

b.  by showing that he was in an excess leave status from 4 August through 31 December 1997 for length of service retirement purposes;

c.  by showing that he was retired in grade E-7 for length of service on 31 December 1997 and transferred to the Retired Reserve on 1 January 1998 with entitlement to retired pay effective that date; and
	
d.  by issuing a new DD Form 214 that correctly reflects the changes directed by these proceedings with the appropriate RE code.

2.  The Army has an established program to counsel retiring soldiers on the rights, benefits, and privileges afforded as a result of military retirement.  Retirement Services Officers (RSO) are available at most major Army installations to provide a retirement briefing, which includes information on the Survivor Benefit Plan (SBP).  The applicant is advised to contact his nearest RSO as soon as possible to facilitate his transition to retired status.
	
3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__EMW__  __HOF__  __MVT__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Ernest M. Willcher
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998013582	
SUFFIX		
RECON		
DATE BOARDED	19990520	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	136.02	
2.		
3.		
4.		
5.		
6.