PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:           25 September 2003  
	DOCKET NUMBER:  AR2003089147

	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. Carl W. S. Chun		Director	
	Mr. Luis Almodova		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Regan K. Smith		Member	
	Ms. Linda D. Simmons		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, in effect, that she be paid full separation pay.

3.  The applicant states, in effect, that her counselor never informed her of any paperwork that was required for her to collect her separation pay.  After her discharge, the applicant states that she obtained her United States citizenship and reenlisted in the Army.  The applicant submitted a copy of her DD Form 214, Certificate of Release or Discharge from Active Duty; and a copy of her DD 
Form 4, Enlistment/Reenlistment Document, dated 6 March 2003, in support of her application.

4.  The applicant’s military records show that she enlisted in the Regular Army on 24 March 1992 and she remained on active duty through three enlistments.  The applicant was honorably discharged on 18 January 2000 in the rank and pay grade, Sergeant, E-5, at the completion of required active service.  On the date of her discharge, she had completed 7 years, 9 months, and 25 days active Federal service.

5.  Block 26 (Separation Code) of the applicant's DD Form 214 shows the code, "JBK."  An entry, "Separation Pay - $15012.99" is shown in Block 18 (Remarks) of the applicant's DD Form 214.

6.  Orders 291-004, published by the Camp Casey Transition Center, APO AP 96224-018, dated 18 October 1999, shows the following in the additional instructions:

"(b) Soldier is entitled to Full Separation Pay IAW [in accordance with] DA Circular 635-92-1.  Contact the Finance personnel in Building 2710, Camp Mobile ***upon receipt of your clearance papers ***.

(i) Payment of Full Separation Pay is contingent upon your entering into a written agreement to serve in the Ready Reserve for a period of not less than 3 years.

(j) Upon receipt of these orders you must arrange for an appointment to see a Reserve Components Career Counselor, in Building 2409, phone number 730-3140."

7.  The applicant was contacted by a member of the staff and inquired if the applicant had made application to finance officials for payment of the separation pay and to determine if she had taken action to enlist in a unit of the Ready Reserve on her separation from the Regular Army.  The applicant responded that 

she had tried to enlist in the Ready Reserve but because at the time she was a resident alien, she did not meet the citizenship eligibility criteria.  Because she could not enlist in a Ready Reserve unit for a period of three years or more, finance advised her, verbally, that they could not pay her the separation pay indicated in her DD Form 214.

8.  The applicant has reenlisted and is currently serving in the Regular Army in the rank and pay grade, Sergeant, E-5.

9.  Army Regulation (AR) 635-5-1 provides the Separation Program Designator (SPD) Codes that are used with various authorities for separation that are to be entered on the DD Form 214 at the time of separation.  This regulation provides, in pertinent part, that the SPD Code of "JBK" is used when the authority for voluntary discharge is Army Regulation 635-200, chapter 4, due to "Completion of Required Service" for Regular Army soldiers who are ineligible for, barred from, or otherwise denied reenlistment who are separated on completion of enlistment.

10.  The applicant, at the time of her service, was an alien who had been lawfully admitted to the United States for permanent residence and was not a citizen of the United States.

11.  Paragraph 3-8.b., AR 601-280, states that citizenship is a nonwaivable criterion for reenlistment.  It continues that, if the alien will have in excess of 8 years of Federal military service (excluding DEP (Delayed Entry Program) after 1 January 1985) at the expiration of the period for which they are seeking to reenlist, they are disqualified from reenlistment.

12.  Department of the Army Circular 635-92-1 (Separation Pay) outlines the eligibility criteria for separation pay.  This Circular provides, in pertinent part, that full separation pay is authorized for soldiers who have completed at least 6 years, but fewer than 20 years of active service; the soldier's service is characterized as Honorable; and is being involuntarily separated as a result of denial of reenlistment.

13.  Item 5.b., Citizenship, of the applicant's DD Form 1966/1,Record of Military Processing – Armed Forces of the United States, with an enlistment date of 6 March 2003, shows that the applicant has become a naturalized U.S. citizen through the naturalization process.  The applicant's recruiter, as attested to in Item 30.c. (2) of the applicant's DD Form 1966/3, verified this information. 

CONCLUSIONS:

1.  The applicant completed her enlistment obligation and was honorably discharged.  The evidence of record shows that she was otherwise fully eligible to reenlist but was precluded from reenlisting in the Regular Army or in the Reserve because she did not meet citizenship requirements.

2.  The Board believes that the applicant tried to fulfill her obligation to enlist in a Ready Reserve unit but because she did not meet the citizenship criterion, she was denied the opportunity to qualify for payment of separation pay.  The Board's belief stems from the fact that the applicant reenlisted in the Regular Army when she attained her U.S. Citizenship.

3.  The Board also believes that because she was not given the opportunity to enlist in a Ready Reserve unit that she was consequently unjustly denied payment of separation pay to which she was entitled.

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

RECOMMENDATION:

That all Department of the Army records related to this case be corrected by showing that the applicant met all eligibility criteria of DA Circular 635-92-1 and was entitled to payment of full separation pay in the amount of $15012.99 as of the date of her discharge, 18 January 2000.

BOARD VOTE:  

____js  __  __lds____  ___rks__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2003089147	
SUFFIX		
RECON		
DATE BOARDED	2003/09/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  283	128.0000	
2.  297	128.1400	
3.		
4.		
5.		
6.