MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 February 2000                  
	DOCKET NUMBER:   AR1999033521

	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. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Ernest W. Lutz, Jr.		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:  Applicant requests correction of his records to  show he is eligible for retirement benefits, including all back retirement. 

APPLICANT STATES:  A favorable action on his pending application for retirement is warranted.  In addition, he asserts his involuntary extension beyond his Expiration Term of Service (ETS) date for the sole purpose of processing an adverse administrative discharge under chapter 14, (misconduct) was in direct violation of Army Regulation (AR) 635-200, paragraph 1-28.

In support of his request, he has submitted various orders and amendments thereto announcing and revising the date of his discharge, the PERSCOM directive regarding his administrative separation, an affidavit of an Army captain who provided legal assistance and consultation to him, a copy of his Application for Voluntary Retirement, a copy of his DD Form 214 and a self authored affidavit of the issues in his case.

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

He reenlisted on 4 May 1992 for 4 years in the grade of sergeant first class (SFC).  He was separated pursuant to AR 635-200, paragraph 14, for misconduct on 10 May 1996 in pay grade E-1 with an under other than honorable discharge after completing over 22 years of active service.

On 18 December 1995 he appeared before an administrative separation board for commission of a serious offense (adultery and wrongful sexual relations with his 17-year-old stepdaughter).  The board recommended separation with an Other Than Honorable discharge.  Headquarters Department of the Army (HQDA) approved the recommendation of the board on 6 May 1996.  The endorsement transmitting those findings back to his commander for action is dated 7 May 1996.

Following his last enlistment on 4 May 1992 his ETS was established as 3 May 1996.  However, due to the delay in processing his separation, he was not discharged until 10 May 1996, seven days after his ETS.

On 5 February 1999 the Army Discharge Review Board (ADRB) determined that the applicant’s discharge was improper because he had been involuntarily extended on active duty while the discharge action was being processed.  Accordingly, on 10 March 1999, the ADRB directed that a new DD Form 214 be issued to the applicant reflecting that he had been honorably discharged in the grade of SFC.

In his request to the ADRB, he also requested approval of his Application for 

Voluntary Retirement which he had submitted on 2 January 1996.  However, since this aspect of his request was beyond the authority of the ADRB, and since he had included an application to this Board with his request to the ADRB, his application was referred here for consideration.

AR 635-200, chapter 12, provides in pertinent part, that a soldier who has completed 20 or more years of active service creditable toward retirement and for whom separation is recommended to HQDA will be given the opportunity of applying for retirement.  However, he or she will be told that authority to submit the application does not assure that it will be approved.  DA Form 2339 (Application for Voluntary Retirement) will be attached when the case is sent to HQDA.

The same regulation provides that a soldier of the Regular Army, ARNGUS or the USAR who has completed 20, but less than 30 years of active Federal service in the US Armed Forces may, at the discretion of the Secretary of the Army, be retired at his or her request.

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.  The issues of upgrading the applicant’s discharge to honorable and restoring his grade to SFC were resolved by the actions of the ADRB.

2.  The applicant has no entitlement to retirement upon completion of 20 but less than 30 years of active service.  The Secretary of the Army, or his designee, has discretionary authority to deny a request for retirement, provided the decision has a rational basis and was neither arbitrary nor capricious.

3.  The evidence establishes that the Assistant Secretary of the Army for Manpower and Reserve Affairs lawfully exercised the discretion delegated to her by the Secretary of the Army, and decided that the applicant would not retire, but be separated with an Other Than Honorable Discharge.  Under AR 635-200, Enlisted Personnel, paragraph 12-4, Twenty-year retirement law, a soldier with 20 years of service may retire “at the discretion of the Secretary of the Army.”

4.  The Army Discharge Review Board’s subsequent ruling that the Other Than Honorable discharge was improper because it was granted after the applicant’s term of service expired, and curative issuance of an Honorable Discharge, does not change the validity of the Assistant Secretary’s intent and decision that the applicant was ineligible for retirement because of his conduct.  

5.  The Army Discharge review Board properly invalidated the Assistant Secretary’s determination that under the misconduct provisions of AR 635-200, Enlisted Personnel, paragraph 14-12c, Commission of a serious offense, the applicant was to receive an Other Than Honorable Discharge and be separated for acts of adultery and wrongful sexual relations with his stepdaughter.  That discharge order was issued after applicant’s term of service expired, in contravention of AR 635-200, paragraph 4-4, Characterization of service upon ETS, which specifics the issuance of an Honorable Discharge to soldiers completing a term of service.

6.  The grounds for and type of discharge as addressed by the ADRB, and the issue of whether the Army awards soldiers retirement are independent actions, however, governed by different regulatory provisions.  Accordingly, the curative action of the ADRB regarding the discharge had no legal or equitable effect on the Secretary’s lawful declination to award retirement to the applicant.   

7.  It appears that the Secretary’s discretion regarding the retirement issue was conducted in accordance with applicable law and regulations, with no evidence of procedural error which would have jeopardized any of the applicant’s rights.  Accordingly, the Board finds no basis to change any of the findings in this matter.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  There is no evidence of a probable error or injustice, and legal and equitable relief are not warranted.

BOARD VOTE:

_mkp____  _bje____  _ewl ____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033521	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000203	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.  136.06		
2.   144.67		
3.		
4.		
5.		
6.