PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  27 October 1999
	DOCKET NUMBER:   AR1998013645

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Ms. Kathleen A. Newman		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 order be revoked and that he be returned to active duty for 1 year and 1 month to complete 20 years active duty for retirement.  In an amendment to his original request the applicant requests eligibility for early retirement.

3.  The applicant states that his record of active duty at the time of his discharge from active duty was incorrect.  He had over 18 years active Federal service and should not have been discharged.

4.  The applicant’s military records show that he enlisted and entered active duty on 24 September 1962.  He was separated from active duty on 16 December 1968 in grade E-5 with 6 years, 2 months, and 23 days active Federal service and transferred to the USAR.  From September 1984 to September 1986 he performed 15 months active duty.

5.  On 22 September 1986 he returned to active duty in grade E-5 in the Active Guard/Reserve (AGR) program.  On 9 August 1993 the applicant and his command were informed of a HQDA imposed bar to reenlistment.  A review of his records by the CY93 USAR AGR promotion board revealed performance deficiencies and determined that he should barred from continuing in the AGR program under the Qualitative Management Program (QMP).  The only document in the available record judged by the board as deficient was his failure to complete the primary leadership development course (PLDC) academics.

6.  On 22 August the applicant acknowledged receipt of the bar to reenlistment and elected to submit an appeal.  His expiration of term of service (ETS) was shown as 10 December 1997.  The commander also indicated that he would submit an appeal to the bar based on his having overcome the deficiencies cited.

7.  On 27 September 1993 the applicant submitted an appeal to the bar.  The unit commander endorsed the appeal, stating that the applicant had proven to be a highly competent, dependable, and knowledgeable soldier.  He recommended the removal of the bar.  The next level commander, a colonel, also recommended removal of the bar stating that he was a definite asset to the unit.  On 28 March 1994 HQDA denied the appeal.

8.  On 6 April 1994 the command was informed of the denied appeal and instructed to initiate separation actions under provisions of Army Regulation 635-200.  If the soldier were not to be separated the bar would remain in effect until ETS.

9.  In a 27 March 1995 memorandum to the command the Office, Chief Army Reserve (OCAR) directed separation action be taken on the applicant and, if the separation authority denied approval of separation, OCAR would take action to seek separation under Secretarial Authority.  This was deemed necessary for support of mobilization missions and strength constraints.
10.  In the available record is a 9 June 1995 memorandum from the applicant’s military legal counsel to the command.  Counsel states that it is his opinion that separation under AR 635-200 is not required in this case because the applicant had attained 18 years of active Federal service and should be allowed to retire on his ETS.  NOTE: Legal counsel appears to be referencing chapter 6 of AR 601-280 which only applies to field commander’s imposed bar to reenlistment.

11.  In a 4 August 1995 memorandum the separation authority requested Secretarial Authority to separate the applicant because the unit commander chose not to initiate separation under AR 635-200.  The installation staff judge advocate (SJA) and the SJA of the separation authority conducted a legal review of the proposed action.  Although differing in rational, both appear to agree that separation cannot occur for inefficiency or unsatisfactory performance.  There was insufficient documentation to support such an action but separation under Secretarial Authority appeared proper.

12.  On 15 December 1995 the applicant was notified of contemplated separation action under provisions of AR 635-200, chapter 5, convenience of the Government. The applicant acknowledged receipt of the notification, his rights, and requested military counsel.  In his appeal to the proposed separation the applicant requested separation on ETS or eligibility for early retirement.

13.  In an 8 February 1996 memorandum to the Reserve Personnel Center (APRERCEN), the assistant SJA recommended the applicant be retained on active duty until ETS because he had over 18 qualifying years of service for Reserve retirement and separation under Secretarial Authority would make him ineligible to reenlist in the USAR to complete 20 years of service.  He also noted that the applicant would not have over 18 years of active Federal service at ETS.  NOTE:  This was based on the best available data at the time concerning his retirement point status that later proved incorrect.

14.  On 15 February 1996 the Commander, ARPERCEN forwarded a recommendation for retention of the applicant until ETS through the OCAR to the Assistant Secretary of the Army.  On 21 May 1996 the OCAR approved retention of the applicant on active duty until ETS when he would be transferred to the USAR.

15.  The applicant’s separation orders were issued with an effective date for separation of 9 December 1997.  The order shows his total active Federal Service as of 9 December 1997 as 17 years, 10 months, and 1 day.  He was also entitled to half separation pay.  Although there is no documentation in the available record to explain the action, on 7 August 1997 his separation date was changed to 31 august 1997.

16.  The applicant’s DD Form 214 (report of separation) shows that he was separated from active duty without transfer to the USAR on 9 December 1997 under authority of AR 635-200, chapter 4 for ETS.  He is credited with 17 years, 5 months, and 11 days active Federal service and 17 years, 9 months, and 5 days inactive service. NOTE:  Both of these calculations appear incorrect based on the available record.  He was entitled to half separation pay in the amount of $18,092.09.  His reenlistment (RE) code is listed as RE-4.

17.  A 29 January 1998 letter to the applicant from the Inspector General (IG) of his former Major Subordinate Command notes that it appears that he should not have been discharged without HQDA approval since he had over 18 years of active Federal service.  The letter cited Title10, USC, section 12686 and AR 635-200 as the authority.  They would forward his ABCMR application to the IG of the Reserve Personnel Command (AR-PERSCOM) for further assistance.  NOTE:  A 23 December 1997 statement of retirement points shows that as of 23 September 1997 he had accumulated 18 years and 6 months active Federal service and over 20 years of qualifying service for Reserve retirement at age 60.

18.  A 25 June 1999 letter from the VA provided the applicant with the amount of readjustment pay they had collected from his VA entitlement to date and the amount of his remaining balance.  As of 1 October 1999 the applicant has paid back his readjustment pay in full and is now receiving his monthly VA entitlement.

19.  Title 10, US Code, section 12686 provides that a Reserve Component member on active duty, who is within 2 years of eligibility for retired pay, will not be involuntarily separated without approval of the Service Secretary.

20.  Title 10, USC, section 1176 provides that a regular enlisted member, who has at least 20 but less than 30 years of service may, upon his request, be retired.

21.  Army Regulation 601-280 provides the policy for retention and reenlistment on active duty.  Chapter 10 prescribes procedures for denying reenlistment under the Qualitative Management Program (QMP).  It specifies that commanders will initiate separation action not later than 60 days from the date of the denial of an appeal to a HQDA imposed bar to reenlistment under the QMP.  It also states that if the separation authority decides not to complete administrative separation, the bar will remain in place.  Additionally, only soldiers with 18 or more years active Federal service may be extended to reach retirement eligibility and commanders do not have the authority to prevent a soldier's extension to preclude him from retirement eligibility.

22.  Army Regulation 635-200 provides for the separation of enlisted personnel from active duty.  Chapter 1, paragraph 1-48 provides for separation under chapters 13 or 14 based on the conduct and performance of soldiers who have had imposed a bar to reenlistment.  Chapters 13 and 14 provide for separation based on unsatisfactory performance or misconduct.  Separation for unsatisfactory performance is determined when it is clearly established that the individual will not develop into a satisfactory soldier; when the soldier’s retention will have an adverse impact on the unit, and when the ability of the soldier to perform duties effectively in unlikely.  The intermediate commander and separation authorities have the authority to disapprove separation and retain the soldier until ETS.  NOTE:  The applicant did not meet the prerequisite for separation for misconduct.

CONCLUSIONS:

1.  Considering all the facts in this case it appears that Governmental error in the accounting of the applicant’s total active Federal service led to his unauthorized discharge prior to completing 20 years of active Federal service for retirement.  Additional Governmental error caused his discharge without transfer to the USAR or providing him the opportunity to transfer to the Retired Reserve for which he was also eligible.

2.  Notwithstanding that the separation appears to be based on information available at the time, an injustice occurred when the applicant was discharged contrary to Title 10, USC, section 12686, and he should now be entitled to transfer to the Retired Reserve under Title 10, USC, section 1176.  Because of the numerous errors on his DD Form 214 he is also entitled to the preparation of a new DD Form 214.

3.  Additionally, the applicant was denied the opportunity to serve until attaining 20 years active Federal Service and he should receive the pay, allowances, and accrued leave payment he would have earned, with the appropriate off-sets, from the date he was discharged from active duty until the last day of the month that he would have attained 20 years active Federal service.

4.  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 of the individual concerned related to this case be corrected by:

	a.  revoking the discharge order and voiding the DD Form 214 which separated him on 9 December 1997;

	b.  reviewing all available records, documents, and computer files to determine his total creditable active Federal service and total inactive service on 9 December 1997, the date of his original discharge;

	c.  crediting him with active duty service from 9 December 1997 until the last day of the month in which he would have attained 20 years active Federal service and paying him his full pay and allowances for this period;

d.  showing that he was retired in grade E-5 for length of service on the last day of the month he would have attained 20 years active Federal service and paying him the proper entitlement for accrued leave in accordance with law and regulation;

e.  issuing a new DD Form 214 to show that he was retired for length of service on the last day of the month he would have attained 20 years active Federal service with the proper active and inactive service credit; and

f.  providing him the opportunity to obtain information on and enroll in the survivor benefit plan.

2.  That so much as is in excess of the foregoing be denied.

BOARD VOTE:  

__MP___  ___GP___  __KN__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Margaret K. Patterson__
		        CHAIRPERSON

INDEX

CASE ID	AR1998013645	
SUFFIX		
RECON		
DATE BOARDED	19991027	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.		
3.		
4.		
5.		
6.