MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 May 2000
	DOCKET NUMBER:   AR1999032292

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Kenneth L. Wright		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:  In effect, that he be reinstated to active duty and be provided back pay and allowances, and that he be retired for length of service if eligible.  In addition, if he is not reinstated to active duty and or retired, that he be granted entitlement to and be paid separation pay based on his honorable release from active duty (REFRAD) on 1 April 1999.
.
APPLICANT STATES:  He has provided the enclosed counsel brief, which presents arguments in his behalf in regard to his entitlement to separation pay and to his claim that nonjudicial punishment (NJP) action taken against him should be rendered null and void.

COUNSEL CONTENDS:  In effect, that the applicant was improperly denied separation pay after being REFRAD, with an honorable characterization of service, after serving for 17 years.  This denial was based on the regulatory authority used for his separation, which does not grant entitlement to separation pay under the provisions of Title 10 of the United States Code, Section 1173 
(10 USC 1173).  Counsel contends that the regulation does not comport with the said statute and claims there is nothing in the statute which precludes the payment of the separation pay that was denied to the applicant under the regulation.  Counsel also claims that the 22 January 1998 NJP action imposed on the applicant, under the provisions of Article 15 of the UCMJ, should be declared null and void.  He argues that the officer who administered the NJP action was without legal authority to do so.  His basis for this contention is that the officer administering the NJP was a Reserve officer, not on active duty, and even though the applicant was attached to his command he did not have the authority to conduct the Article 15 action against an officer who was on active duty.  Counsel’s expanded arguments on the issues are provided in the enclosed brief.  

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

The applicant served on active duty in an Active Guard/Reserve (AGR) status, in the rank of chief warrant officer/W-4 (CW4), from 11 January 1987 until his REFRAD on 1 April 1999.  At the time of his REFRAD he had completed 
15 years, 9 months, and 14 days of active military service and 9 years, 7 months, and 15 days of inactive service.  

On 14 February 1997, an investigating officer was appointed to conduct an investigation of the applicant, under the provisions of Army Regulation 15-6.  The investigating officer was tasked to investigate the following allegations against the applicant: misuse of a government credit card; false statements made to obtain permissive leave; false claims for pay and allowances; fraternization with an AGR sergeant; adultery with an AGR sergeant; false statements made in an application for government housing; and intimidation of a witness which constituted conduct unbecoming.
On 7 March 1997, the investigating officer provided his findings and recommendations.  He found that the applicant had, in effect, misused his government credit card by using it for personal use; made a false statement to obtain permissive leave; made false claims to obtain pay and allowances over a 15 year period by, on at least four occasions, by submitting claims which resulted in his obtaining over $20,000 in fraudulent payments from the government; fraternized, by engaging in a personal social relationship, with an AGR sergeant who was a former member of his unit and command; and although not proven beyond a reasonable doubt, likely committed adultery with the AGR sergeant.  The investigating officer’s final recommendation was that court-martial charges be preferred against the applicant for the aforementioned findings which constituted several violations of the UCMJ.

On 22 January 1998, the applicant accepted NJP, under the provisions of Article 15 of the UCMJ, for violations of Articles 107, 134, and 92.  These violations included his making a false statement that he was married and had a dependent daughter in order to obtain government housing; wrongly endeavoring to impede an investigation by attempting to influence the testimony of a witness; and failing to obey a lawful order to refrain from contacting any witnesses in the investigation being conducted against him.  His punishment for this offense was to receive a letter of reprimand.  The applicant elected not to appeal the NJP action and the letter of reprimand was issued to him on the same day.

On 8 December 1998, the Director of the Full Time Support Management Directorate of the Army Reserve Personnel Command (ARPERSCOM) elected to submit the applicant’s case for consideration by the Department of the Army Active Duty Board (DAADB), under the provisions of paragraph 2-31, Army Regulation 600-8-24. 

On 15 January 1999, the Chief of the Officer Retirements and Separations Branch of the Army Personnel Command (PERSCOM) forwarded the applicant’s case to the DAADB for their review and appropriate action. 

On 8 February 1999, the DAADB convened to consider the applicant’s release from active duty because of his misconduct, moral or professional dereliction of duty, and for substandard performance.  The DAADB, after carefully considering the applicant’s case recommended that he be REFRAD with an honorable characterization of service.  

On 11 February 1999, the appropriate authority approved the findings and recommendations of the DAADB and directed that the applicant be REFRAD with an honorable characterization of service, by reason of misconduct, moral or professional dereliction.  

Accordingly, on 1 April 1999 the applicant was separated under the provisions of paragraph 2-31 of Army Regulation 600-8-24.  The DD Form 214 (Certificate of Release or Discharge From Active Duty) issued to the applicant contains no authorization for separation pay in block 18 (remarks) and block 26 (separation code) shows that he was assigned a Separation Program Designator (SPD) code of LGH.

Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  Section XV (Process Involuntary REFRAD by the Department of the Army Active Duty Board) contains guidance on processing an officer for an involuntary REFRAD.  Paragraph 
2-31 contains the rules for processing involuntary REFRAD by the DAADB.  The DAADB (qualitative) is the Army's tool for ensuring that only a Reserve Component officer who consistently maintains high standards of performance, efficiency, morality, and professionalism is permitted to serve on active duty.  

The regulation allows local commanders; the commander of PERSCOM; the Chief of the Army Reserve; or the commander of ARPERCEN to recommend that a RC officer be considered by a DAADB to determine if the officer's manner of performance, degree of efficiency, or misconduct constitutes consideration for involuntary separation.  An officer may be considered by the DAADB if they have less than 18 years of active federal service on the projected separation date and there is evidence of a significant act or condition of misconduct or moral or professional dereliction.

Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay and illustrates the various types of separation that are either eligible or ineligible for separation pay.  Paragraph 2-4 (not eligible for separation pay) states, in pertinent part, that an officer being involuntarily separated for acts of misconduct or moral or professional dereliction is not authorized to receive separation pay.  

Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of LGH was the appropriate code for the applicant based on the guidance provided in Army Regulation 635-5-1 for soldiers separating under the provisions of paragraph 2-31, Army Regulation  600-8-24 for non-retention on active duty.  

Army personnel officials in concert with the Defense Finance and Accounting Service (DFAS) have tied the entitlement to separation pay, as provided for by the law, to the authority for and narrative reason for discharge.  This authorization is codified in the SPD code assigned to a soldier at separation.  Published DFAS guidance in regard to separation pay indicates that the SPD code of LGH, which was the code properly assigned to the applicant at separation, does not carry with it the authorization for payment of separation pay. 

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 (Nonjudicial Punishment) implements and amplifies Article 15, UCMJ, and Part V, of the Manual for Courts-Martial.  This chapter prescribes requirements, policies, limitations, and procedures for commanders at all levels imposing nonjudicial punishment, members on whom this punishment is to be imposed, and other persons who may take some action with respect to the proceedings. 

Paragraph 3-7 (who may impose nonjudicial punishment) states, in pertinent part, that unless authority to impose nonjudicial punishment has been limited or withheld by a superior commander, any commander is authorized to exercise the disciplinary powers conferred by Article 15.  The term "commander," as used in this chapter, means a commissioned or warrant officer who, by virtue of that officer's grade and assignment, exercises primary command authority over a military organization or prescribed territorial area, that under pertinent official directives is recognized as a command. 

Paragraph 3-8 (military personnel of a commander's command) states, in pertinent part, that unless such authority is limited or withheld by superior competent authority, a commander may impose punishment under Article 15 on commissioned officers, warrant officers, and other military personnel of a commander's command.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  After carefully evaluating the evidence of record and the independent evidence submitted by the applicant and his counsel, the Board concluded that the relief is not warranted in this case. 

2.  The applicant’s separation was directed by the appropriate authority, based on the findings and recommendations of a properly constituted DAADB.  The reason cited by the separation authority for the applicant’s separation was his misconduct and moral or professional dereliction, which does not carry with it an entitlement to separation pay.  Further, the Board determined that this process was conducted in accordance with applicable law and regulations and found the reason and authority for the applicant’s REFRAD were proper and equitable.  

3.  The Board noted the contention of the applicant and his counsel that the NJP action of 22 January 1998 should be null and void because the official administering the proceedings did not have the legal authority to impose NJP.  However, the Board found no available evidence that supports this claim.  The officer who administered the Article 15 action against the applicant was in fact his commander and there is no indication that his authority to impose NJP had been withheld by a higher authority. 

4.  In addition, the Board concluded that even if the NJP action were declared null and void, this would not serve to exonerate the applicant of the misconduct that resulted in his separation.  The applicant’s moral or professional dereliction was established in the findings of the Army Regulation 15-6 investigation of his conduct, which found that he violated several articles of the UCMJ.  Therefore, the Board concluded that the applicant’s separation for misconduct, moral or professional dereliction would remain a proper and equitable outcome even were the NJP action overturned.  Therefore, the Board resolved that there was no basis for returning the applicant to active duty or to take any of the associated relief actions requested. 

5.  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.

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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___ewl __  ___klw __  ___eja __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999032292	
SUFFIX		
RECON		
DATE BOARDED	2000/05/25	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1999/04/01	
DISCHARGE AUTHORITY	AR 600-8-24  Para 2-31	
DISCHARGE REASON	Non-Retention on Active Duty	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 283	128.1000	
2.		
3.		
4.		
5.		
6.