PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            19 June 2003
	DOCKET NUMBER:   AR2002081790

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. William D. Powers		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 he be paid separation pay.

3.  The applicant states, in effect, that he served 8 years in the Army and was discharged because he was not a United States citizen and had served the maximum number of years allowed as an alien.  At the time of his discharge, his report of separation (DD Form 214) indicated that he would receive separation pay in the amount of $15,563.10; however, he never received the separation pay and has since been informed that his separation code of "JCP" is incorrect and thus prevents him from receiving separation pay.

4.  The applicant’s military records show that he enlisted in San Diego, California, on 28 July 1992, for a period of 4 years.  He completed his training as a field artillery surveyor and remained on active duty.  He reenlisted on 13 April 1998 for a period of 2 years and served until he was honorably discharged in the pay grade of E-5 on 12 April 2000, under the provisions of Army Regulation 635-200, paragraph 5-10, due to his being an alien.  He had served 7 years, 8 months and 15 days of total active service and was issued a separation code of "JCP" and a Reentry (RE) Code of "3."  

5.  At the time of his discharge, his DD Form 214 indicates that he was entitled to separation pay in the amount of $15,563.10.

6.  On 28 March 2002, in response to a congressional inquiry, the Defense Finance and Accounting Service (DFAS) informed the congressional representative that the separation code issued to the applicant did not qualify him for separation pay and that he should apply to this Board if he thought there was an error or injustice.

7.  Army Regulation 635-200 serves as the authority for enlisted separations.  Paragraph 5-10 of that regulation provides for the discharge of aliens not lawfully admitted to the United States. 

8.  Chapter 4 of that regulation provides for the separation or discharge of enlisted personnel upon expiration of enlistment or fulfillment of service obligations.  A soldier being separated upon expiration of enlistment or fulfillment of service obligations will be issued a characterization of honorable.

9.  Army Regulation 601-210 governs eligibility criteria, policies and procedures for enlistment into the Regular Army.  It provides, in pertinent part, that an alien who has been lawfully admitted to the United States for permanent residence is eligible for enlistment.  Applicants and enlistees will be advised that if they are not a United States (U.S.) citizen that they must obtain U.S. citizenship in order to remain in the Army for more than 8 years.  That regulation also provides that a RE Code of "3” will be issued at the time of separation to denote persons who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.

10.  Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay.  It provides, in pertinent part, that one-half separation pay is authorized for soldiers who are not fully qualified for retention, are denied reenlistment and separate on the expiration of their term of service (ETS) after having served at least 6 years of active duty service.  Separation pay is not authorized for illegal aliens.

11.  Army Regulation 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.  It provides, in pertinent part, that the SPD Code of "JBK" is used when the authority for separation is Army Regulation 635-200, chapter 4, due to "Completion of Required Service."  The SPD Code of "JCP" is used when the separation authority is Army Regulation 635-200, paragraph 5-10, when discharging illegal aliens. 

CONCLUSIONS:

1.  While it was proper to deny the applicant reenlistment when he did not attain his U.S. citizenship by the time he reached his 8th year of service, it was not proper to discharge him under the provisions used for discharging illegal aliens.

2.  Inasmuch as he fulfilled his contract and separated on the date of his ETS, the applicant should have been separated by reason of "Completion of Required Service" with a SPD Code of "JBK."  

3.  Likewise, he was entitled to receive one-half involuntary separation pay for his 7 years, 8 months and 15 days of service.

4.  The applicant received the proper RE Code of "3", which would allow him to apply for a waiver for subsequent enlistment in the event that he should obtain his U.S. citizenship.

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

RECOMMENDATION:  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was discharged under the provisions of Army Regulation 635-200, chapter 4, due to "Completion of Required Service" with a SPD Code of "JBK" and entitlement to one-half separation pay.

BOARD VOTE:  

___js ___  ___wdp__  __lem___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2002081790	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/06/19	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000/CORR 214	
2.  291	128.0800/SEP PAY	
3.		
4.		
5.		
6.