MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 August 2000                  
	DOCKET NUMBER:    AR1999034111

	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. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward . 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons		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 the collection action being taken on his separation pay be terminated and that all money that has been collected to satisfy that debt be returned to him.  He also requests that he be reinstated to active duty and allowed to qualify for retired pay for years of service.

APPLICANT STATES:  He was entitled to separation pay as an officer who has served over 15 years on active duty.  He charges that he was never given any explanation of why he was not entitled to separation pay and demands the opportunity to defend himself in this regard.  He also states that he should be given the chance to retire from active duty, an opportunity he was denied due to the drawdown of the Army.

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

He enlisted in the Regular Army on 21 July 1976, reenlisted and was honorably released from active duty in pay grade E-5 on 8 May 1982.  He enlisted as a cadet in the Reserve Officers Training Corp on 16 August 1982 and was commissioned as a second lieutenant, Army Reserve, on 1 June 1984.  He was appointed as a National Guard officer and entered on active duty on 20 October 1985.

He served in the Ordnance Corps and was promoted to the rank of captain.

While serving as a first lieutenant who had been selected for promotion, the applicant was given an Academic Evaluation Report (AER) which showed that he failed the Argentine Military Mountain Course.  In that AER it was stated that the applicant lacked military bearing and officer traits, that his performance was substandard, that he was not cooperative at all times, that he was defensive and arrogant, and that he was argumentative.  That AER was considered adverse and was referred to the applicant for comment.  The applicant responded to that referral and rebutted the allegations made against him in that report.

The applicant’s Officer Evaluation Reports (OER’s) show that he was rated below center of mass by his senior rater for the period ending 15 January 1991, 27 August 1991, and 11 May 1992.

On 5 June 1992 the Total Army Personnel Command (PERSCOM) sent the applicant a memorandum informing him that he had been selected for involuntary release from active duty by a Department of the Army Active Duty Board (ADB).  In that memorandum the applicant was informed “You are not entitled to separation pay under provisions of section 1174, Title 10, United States Code.”

Accordingly, on 17 July 1992 the applicant was released from active duty and transferred to the USAR Control Group (Reinforcement).  His separation documents show that he was separated for failure to meet minimum standards of retention and assigned a separation code of “LGH.”

Title 10, United States Code, §12313, provides that the Secretary of the Army may at any time release a Reserve under his jurisdiction from active duty.

Army Regulation 635-100, Officer Personnel, paragraph 3-49, provides that officers will be involuntarily released from active duty upon the recommendation of the DAADB when evidence reveals that an officer has committed a significant act of misconduct or moral or professional dereliction or the officer’s degree of efficiency and manner of performance require release from active duty or elimination from the service.

Department of the Army Circular 635-92-1, Separation Pay, Table E-3, Not Eligible For Separation Pay, lists “Failure to meet minimum standards for retention.”

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

1.  The applicant’s failure to complete a service school due to conduct and efficiency problems, along with three below average OER’s, are more than sufficient grounds in which to base his selection for release from active duty by the DAADB. 

2.  Since the applicant’s separation was accomplished in accordance with applicable law and regulation, there is no basis in which to consider reinstating him on active duty.

3.  Contrary to the applicant’s contention, he was informed that he would not receive separation pay in the memorandum notifying him that he had been selected for release from active duty by the DAADB.

4.  Since the reason for the applicant’s separation is one which does not authorize separation pay, any separation pay he was given was erroneously paid and is properly being collected from the applicant.

5.  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

__svw ___  __mhm__  ___lds __  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999034111	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000817	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.	128.08	
3.		
4.		
5.		
6.