IN THE CASE OF: BOARD DATE: 3 December 2015 DOCKET NUMBER: 20150009337 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States District Court for the Eastern District of North Carolina. The Court directs the ABCMR to reconsider the following issues: a. Determine whether, in light of the Army Discharge Review Board's (ADRB) decision to upgrade the applicant's characterization of service to fully honorable, the Army properly followed Army Regulation (AR) 601-280 (Army Retention Program), paragraph 3-16(e), when it denied his request to correct his military records and affirmed the Army's discharge under AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b. b. Reconsider the Board's denial of his request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he served in Operation Enduring Freedom. c. The court also has asked the Board to consider the Federal Circuit Court of Appeals' decision in Ruffin v. United States. 2. On 30 July 2014, the applicant filed a complaint against the Army seeking a correction of his military records. He served on active duty from 30 January 1986 to 27 February 2006. He had executed an indefinite reenlistment in 2002 which would have allowed him to stay on active duty up to his retention control point (RCP) for his current rank, which was then set as 31 January 2006. a. He was absent without leave (AWOL) from 6 to 11 February 2004 and received nonjudicial punishment (NJP) for this AWOL. He was again AWOL from 31 July to 3 August 2004. On 3 August 2004, he went to Womack Hospital at Fort Bragg, NC, with his wife to complete an intake when a superior arrived and ordered him to leave with him and undergo a command-directed urinalysis. The applicant asserted that the officer ordered him to leave with him in order to stop him from self-referring at the hospital. The urinalysis tested positive for cocaine. The officer returned the applicant to the hospital where the applicant remained until 9 August 2004 and where he was diagnosed in part with cocaine dependence. On 30 August 2004, he received NJP for being AWOL and using cocaine. b. He requested to be released from active duty on 28 February 2006 and be placed on the Retired List on 1 March 2006. His expiration of term of service (ETS) date was 1 March 2006. He would have completed 20 years of service in the Army on that date. On 3 July 2005, his commander recommended his separation based on misconduct (AWOL, cocaine). He was advised to appear before an administrative separation board. He asked the Army to withdraw the separation action because it relied on records from his file that were for use only in a court-martial. On 2 October 2005, he was admitted to the hospital for a suicide attempt. He then signed a waiver of his appearance before the administrative board, which convened without him and recommended his discharge with an under other than honorable conditions discharge. c. The convening authority reviewed the separation packet and asked the U.S. Army Human Resources Command (HRC) to approve it. His chain of command recommended denial of the retirement and the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) ordered the discharge. He was discharged on 27 February 2006. d. On 18 January 2008, the ADRB granted him partial relief in that it upgraded his characterization of service to fully honorable due to the introduction of limited use information at the separation hearing. The ADRB stated that the separation itself was fully supported by the record and did not change the reason. In March 2008, he applied to the ABCMR to correct his records to show his retirement and service in Operation Enduring Freedom. In August 2008, the ABCMR denied his request. His request for reconsideration (submitted in 2012) was returned without action because it was not submitted within 1 year of the original decision. 3. The Court provided the administrative record consisting of 24 enclosures. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 30 January 1986. He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 75B (Personnel Administration Specialist). 2. On 8 July 1986, while in training at Fort Benjamin Harrison, IN, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using some amount of cocaine on 1 April 1986 while at Fort Dix. 3. He reenlisted in the RA on 17 June 1988. On 30 July 1988, he was reprimanded by the Commanding General, 82nd Airborne Division, Fort Bragg, NC, for driving while impaired and refusing to complete a lawfully requested chemical test at the time of his arrest. 4. He reenlisted in the RA on 22 November 1989. He subsequently served through multiple reenlistments or extensions in stateside or overseas assignments. His last reenlistment was executed on 20 March 2002 for an indefinite number of years, up to his RCP for his current rank. 5. He attended and completed the Food Service Course from February to May 1995 and he was awarded MOS 94B (Food Service Specialist) (later redesignated as 92G). He was promoted to the rank/grade of staff sergeant (SSG)/E-6 in July 1996. 6. On 8 October 1997, he was convicted by a special court-martial of one specification of wrongfully using cocaine between on or about 30 May 1997 and on or about 30 June 1997. The Court sentenced him to reduction to the lowest enlisted grade and a bad conduct discharge. 7. On 2 April 1998, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to the Staff Judge Advocate for appellate review. 8. On 18 April 2002, the U.S. Court of Appeals for the Armed Forces set aside the finding of guilty of the charge and its specification and the sentence based on the military judge’s failure to give a curative instruction after trial counsel made an improper argument. The Court ordered a rehearing. 9. Special Court-Martial Order Number 1, issued by Headquarters, 82nd Airborne Division, on 17 January 2002, shows the finding of guilty of the charge and its specification and the sentence were set aside and a rehearing was ordered. The convening authority determined a rehearing was not practicable. He disapproved the sentence and dismissed the charge and its specification. The applicant's rights, privileges, and property were ordered restored. 10. On 1 March 2004, in an open hearing at Fort Bragg, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 6 to 11 February 2004. His punishment consisted of reduction to sergeant (SGT)/E-5 (suspended, to be automatically remitted if not vacated before 3 September 2004), forfeiture of pay, and an oral reprimand. He elected not to appeal his punishment. 11. On 31 July 2004, the applicant departed his unit, the 19th Replacement Company, Fort Bragg, in an AWOL status. He returned to military control on or about 3 August 2004. 12. On 18 August 2004, the Article 15 imposing officer vacated the suspension of the punishment of reduction to SGT/E-5 imposed on 17 March 2004 and ordered that the unexecuted portion of the punishment be executed. 13. On 30 August 2004, at a closed hearing, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 31 July 2004 to 3 August 2004 and wrongfully using cocaine between on or about 31 July 2004 and on or about 3 August 2004. His punishment consisted of reduction to specialist (SPC)/E-4, forfeiture of pay, and extra duty and restriction. He elected to appeal his punishment but his appeal was denied. 14. On 28 February 2005, the applicant submitted a request for voluntary retirement by reason of length of service. He requested his retirement to be effective 28 February 2006 and placement on the Retired List in the rank/grade of SSG/E-6 on 1 March 2006. His chain of command recommended disapproval. 15. On 8 July 2005, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of AR 635-200 (Personnel Separations – Enlisted Personnel) for a pattern of misconduct. Specifically, the immediate commander cited the applicant's illegal use of cocaine between on or about 31 July 2004 and on or about 3 August 2004; being AWOL from 31 July to 3 August 2004 and from 6 to 11 February 2004; and operating a motor vehicle while impaired on 1 July 2002. He recommended the applicant be issued an under other than honorable conditions discharge. 16. On 8 July 2005, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him. He requested consideration of his case by an administrative separation board, a personal appearance before an administrative separation board with counsel, and he elected not to submit a statement on his own behalf. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a discharge under honorable conditions was issued to him. 17. Subsequent to his acknowledgement, his immediate commander forwarded the separation action with a recommendation for issuance of an under other than honorable conditions discharge. 18. On 13 July 2005, by memorandum to the separation authority, the applicant requested withdrawal of the separation action. He stated that he had 20 years of active service as of 8 February 2006 and would be eligible for retirement on 1 March 2006. 19. On 21 July 2005, the applicant's intermediate commander recommended approval of the separation action with the issuance of an under other than honorable conditions discharge. 20. On 10 August 2005, by memorandum, the applicant was given notice that an administrative separation board would convene to determine if he should be separated from the Army under the provisions of chapter 14-12b of AR 635-200. He acknowledged receipt of the notice. 21. On 29 September 2005, by memorandum, the applicant requested a waiver of appearance before the scheduled administrative separation board. He stated that he believed the matters submitted included improperly obtained evidence (to wit, an Article 15) and limited use evidence. However, he stated that he recognized that the Commanding General had determined the Article 15 to be properly obtained and the Government would not submit that either urinalysis was inadmissible as limited use. He acknowledged he had been advised of the consequences of him not appearing at the administrative separation board. 22. On 31 August 2005, his defense counsel submitted a memorandum to the separation authority. Counsel stated that in the immediate commander's notification, the memorandum mentioned an Article 15, dated 8 July 1986. This Article 15 was released to the Government for court-martial use only. The Government was required to destroy this Article 15 but failed to do so. The Government then referred the separation memorandum to the applicant and improperly referred to the document cited. As such, the referral was, on its face, defective. His counsel contended the administrative separation board should be cancelled and withdrawn. 23. On 13 September 2005, the applicant underwent a mental status evaluation. He was found to have the mental capacity to participate in administrative proceedings and he was mentally responsible and able to distinguish right from wrong. He was diagnosed with cocaine/alcohol dependence and adjustment disorder with mixed disturbance of emotions and conduct. 24. On 29 September 2005, an administrative separation board attempted to convene to determine if the applicant should be separated from the Army under the provisions of chapter 14-12b of AR 635-200 with the applicant and his counsel present. The applicant appeared with his counsel. At that time, counsel submitted to the administrative separation board that the applicant waived his right to an administrative separation board. The applicant was called and testified that the waiving of the administrative separation board was his decision. The administrative separation board did not convene and left. 25. After research, the administrative separation board determined that the applicant was not entitled to waive his right to an administrative separation board because of his years of service. At that time, the applicant waived appearance before that administrative separation board. The administrative board convened at 1650 hours on 29 September 2005. After considering the evidence before it, the board found the allegation of a pattern of misconduct was supported by the preponderance of the evidence and the findings warranted separation. The applicant was not desirable for further service and, accordingly, the administrative separation board recommended his separation from the Army with the issuance of an under other than honorable conditions discharge. 26. On 21 October 2005, the Chief, Administrative Law Division, Fort Bragg, conducted a legal review and found the record of proceedings for the administrative separation board legally sufficient. The Chief added some notes as follows: a. The regulation (AR 635-200) states the applicant's 18 years of service prohibited him from waiving his right to appear before the administrative board (paragraph 2-5(d)). Although the applicant may appear before the administrative separation board in person (paragraph 10-2d(1)), the failure to invoke those rights will not affect the legality of the proceedings (paragraph 2-10(d)(12)). b. No witnesses testified at the administrative separation board. The administrative separation board's findings and recommendations were based exclusively on the information contained in the separation packet. Paragraph 2-10(d)(3) states the Soldier may request the attendance of a witness but paragraph 2-10(d)(2) states the failure to do so will not invalidate the proceedings. c. The separation packet does not contain any limited use evidence. All the information is relevant and competent and the packet demonstrates a pattern of misconduct. Because the applicant had completed 18 years of service, his involuntary discharge required approval by Headquarters, Department of the Army (HQDA). 27. On 26 October 2005, by memorandum to HQDA, the separation authority confirmed the administrative discharge packet pertaining to the applicant had been reviewed and recommended approval of the administrative separation board by separating the applicant with an under other than honorable conditions discharge. 28. On 3 January 2006, by memorandum through HRC and the Army G-1 to the ASA (M&RA), the Director of Enlisted Personnel recommended approval of the discharge action under the provisions of paragraph 14-12b of AR 635-200. 29. On 18 January 2006, by memorandum, the administrative separation board recorder, a Judge Advocate General's Corps attorney, stated that although the applicant waived his appearance on 29 September 2005, the administrative board was held in his absence. She (the attorney) added that she advised the board members that in making their decision to retain or separate him, the board members could only consider his current enlistment. She also advised the members if they recommended discharge, they could consider his entire record in order to determine the characterization of service. 30. On 15 February 2006, by memorandum, HRC notified the chain of command that the ASA (M&RA) had carefully reviewed the request for involuntary separation against the applicant and approved it. Additionally, the ASA (M&RA) expressly waived the counseling and rehabilitative transfer requirements. The applicant was ordered discharged with a characterization of service of under other than honorable conditions with separation code JKA (pattern of misconduct) and reentry (RE) code 4 (ineligible for reentry). Additionally, the applicant would be reduced to E-1. Accordingly, the applicant was discharged on 27 February 2006. 31. The DD Form 214 he was issued shows he was discharged under the provisions of chapter 14-12b of AR 635-200 with an under other than honorable conditions characterization of service. This form shows he completed 20 years and 21 days of creditable active service and he had lost time from 6 February to 10 February 2004 and from 31 July to 2 August 2004. Item 18 (Remarks) does not list any deployments or service in any hostile fire pay/imminent danger pay (HFP/IDP) area. 32. His official military personnel file (OMPF) does not contain any documents confirming deployment to a HFP/IDP area. There are no deployment orders, temporary change of station (TCS) orders, temporary duty (TDY) orders, or manifest reports showing he deployed in support of Operation Enduring Freedom. Likewise, none of his award certificates or Noncommissioned Officer Evaluation Reports mention deployment in support of Operation Enduring Freedom. 33. In ADRB Docket Number AR20060016442, dated 18 January 2008, the ADRB: * determined the chain of command introduced into the separation packet the results of a command-directed competence for duty biochemical test which is limited use information as defined in AR 600-85 (The Army Substance Abuse Program (ASAP)) * concluded the use of limited use information mandated award of an honorable characterization of service and determined the applicant's character of service was improper * found the reason for the discharge was fully supported by the record and therefore remained proper and equitable * recommended an upgrade of his discharge to fully honorable 34. Based on the ADRB's findings, the applicant was issued a new DD Form 214 listing his characterization of service as honorable but with the same separation authority, narrative reason for separation, and separation and RE codes. 35. On 24 March 2008, he petitioned the ABCMR for the removal of a record of proceedings under Article 15, UCMJ, dated 30 August 2004; withdrawal of his separation for misconduct; approval of his request to retire for years of service; and asked that an entry be made on his separation document (DD Form 214) showing he served in Operation Enduring Freedom. However, on 5 August 2008 (ABCMR Docket Number AR20080005375) the Board determined the evidence presented did not demonstrate the existence of a probable error or injustice. The Board denied his request. 36. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 2-5 (Waivers) states in sub-paragraph (a) when a Soldier waives his/her right to a hearing before an administrative board and the separation authority approves the waiver, the case will be processed without convening a board, and in sub-paragraph (d) waivers of the board hearing will not be accepted in the cases of Soldiers who have completed 18 years or more active Federal service b. Paragraph 2-10 (Board Procedures) states in subparagraph (d) the commander will advise the Soldier, in writing, of the specific basis (subparagraph number and description) for the proposed discharge action. The commander will also advise the Soldier that he/she has the following rights (listed from 1 to 11) and that failure of the Soldier to invoke any of the above rights after he/she has been apprised of the same will not have an effect upon the validity of the separation proceedings. c. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. An honorable discharge may be furnished when disqualifying entries in the Soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service. d. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. e. Paragraph 12-4 (20-Year retirement law) states a Soldier who has completed 20 but less than 30 years of active federal service in the U.S. Armed Forces may be retired at his or her request (see paragraph 12-14f). The Soldier must have completed all required service obligations at the time of retirement. f. Paragraph 12-7 (Eligibility for retirement) states Soldiers who have completed 20 but less than 30 years of active federal service and who have completed all required service obligations are eligible, but not entitled, to retire upon request. Soldiers who are under suspension of favorable personnel actions per AR 600–8-2 (Suspension of Favorable Personnel Actions) are not precluded from submitting applications for retirement. Requests for retirement will be considered on a case-by-case basis by the local retirement approval authority. g. Chapter 14 establishes policy and procedures for separating personnel for misconduct. Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. h. Paragraph 14-12b (pattern of misconduct) states a pattern of misconduct consists of one of the following: (1) Discreditable involvement with civil or military authorities; or (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. i. Paragraph 14-12c (Commission of a serious offense) states AWOL and abuse of illegal drugs are serious misconduct. However, relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under 14-12(a) or 14-12(b), as appropriate. All Soldiers against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under the provisions of chapter 9 or section II of this chapter will be processed for separation under a, b, or c, above, as applicable. 37. AR 601-280 prescribes criteria for the Army Retention Program and sets forth policies, command responsibilities for immediate reenlistment or extension of enlistment of Soldiers currently serving in the Active Army and enlistment/ transfer and assignment of Soldiers processing from the Active Army to the Reserve Components of the U.S. Army. a. Paragraph 3-16(a) states the Secretary of the Army may accept Regular Army Soldiers for an unspecified or indefinite term of service in accordance with Title 10, U.S. Code (USC), section 505d. All Regular Army enlisted Soldiers with over 10 years of active federal service are required to reenlist for an indefinite term unless otherwise exempted elsewhere in this regulation. b. Paragraph 3-16(c) states Soldiers on indefinite status will be allowed to serve until the applicable RCP for their rank. If promoted, the Soldier is then permitted to serve to the RCP for their new rank. Soldiers will not be allowed to exceed the RCP by more than 29 days. c. Paragraph 3-16(e) (Reductions in rank) states Soldiers on indefinite status who are reduced in rank will be allowed to serve until the RCP for the lower rank. Soldiers who exceed the RCP as a result of reduction or removal from a promotion list will be processed in accordance with paragraph 3-8g and table 3-1 this regulation. Soldiers who have attained 18 years active federal service will not be separated under provisions of AR 635-200, but will be permitted to retire on the first day of the month following the month they reach 20 years active federal service. 38. In a 28 January 2014 memorandum, subject: Army Directive 2014-03 (RCP), implementing new RCP standards, Secretary John McHugh stated: Soldiers who exceed the RCP for their current rank because of a reduction in grade … must retire or separate no earlier than 90 days or no later than 180 days after the effective date of the reduction in grade. Soldiers with 18 or more years of active Federal service who exceed RCPs as a result of a reduction in rank may serve to meet minimum retirement eligibility unless involuntarily separated by me or my designated representative. (emphasis added) 39. Title 10, USC, section 1176 (10 USC 1176) (Enlisted members: retention after completion of 18 or more, but less than 20, years of service) states a regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of qualifying for retirement under section 3914 or 8914 of this title, or of qualifying for transfer to the Fleet Reserve or Fleet Marine Corps Reserve under section 6330 of this title, shall be retained on active duty until the member is qualified for retirement or transfer to the Fleet Reserve or Fleet Marine Corps Reserve, as the case may be, unless the member is sooner retired or discharged under any other provision of law. 40. Title 32, Code of Federal Regulations, section 88.3, provides that “discharge under adverse conditions is determined by referring to the reason for separation as well as the enlisted member’s service” (emphasis added). 41. In Ruffin v. United States (509 F. App'x 978 (Fed. Cir. 2013)), the plaintiff claimed that 10 USC 1176 protected him from involuntary separation because he was within 2 years of qualifying for retirement. The Federal Circuit Court of Appeals disagreed and noted that 10 USC 1176 only protected those who were not discharged under adverse, or "other than honorable," conditions. 42. In Hoffman v. United States (57 Fed. Cl. 253 (Fed. Cl. 2003)), the Court of Federal Claims heard a case involving a separated former officer who sought safe harbor in an Air Force provision of regulation allowing a 2-year "sanctuary period" from involuntary separation after 18 years of military service. That regulation mirrors the laws and regulations in this case in that it permitted the Secretary of the Air Force to approve or order involuntary separation under adverse conditions. In Hoffman, the plaintiff had received a general discharge under "honorable conditions," but the Court of Federal Claims nonetheless upheld the Air Force's separation action after rejecting the plaintiff's argument that he was protected by the sanctuary period. 43. AR 600-85 prescribes policies and procedures for the operation and evaluation of the ASAP. The regulation limits the use of certain evidence obtained from individuals under the exemption policy. For individuals enrolled in the ASAP, the exemption policy provides immunity from disciplinary action and covers admissions of drug use/possession for personal use, or on interview, which is revealed to a physician or an ASAP counselor. AR 600-85 provides that the characterization of service may be based upon the overall quality of the member's service, in which case either a general or an honorable discharge may be awarded. It stipulates, however, that in any case in which the Government initially introduces into the final discharge process limited use evidence as defined by AR 600-85, an honorable discharge is mandated. 44. Department of Defense Directive 1010.1, paragraph 3.4.1.3, states that ?results of a command-directed urinalysis test may be used as a basis for administrative action, including separation, but shall not be used as the basis for an action under the UCMJ or be considered in the issue of characterization of service in a separation proceeding.? 45. AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. Chapter 2 contains guidance on the preparation of the DD Form 214. It states in item 18, for an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement "Service in (Name of Country Deployed) From YYYYMMDD - YYYYMMDD)." DISCUSSION AND CONCLUSIONS: 1. The applicant served on active duty from 30 January 1986 to 27 February 2006, completing 20 years and 21 days of active service. He was discharged by reason of misconduct. He was eligible for retirement based on sufficient active service; however, retirement is not an entitlement. a. The applicant exhibited a pattern of misconduct as evidenced by his multiple periods of AWOL, multiple instances of cocaine possession and/or usage, and multiple instances of NJP. Accordingly, his chain of command initiated separation action against him. b. He was notified by his commander and advised of the administrative separation board. Because of his years of service, he did not have the option to decline an administrative separation board. However, he did have the right not to appear before such board and that is exactly what he did. The administrative separation board convened and found the applicant undesirable for further service. The administrative separation board recommended his separation from the Army with the issuance of an under other than honorable conditions discharge. The chain of command recommended approval and the higher authority (HQDA) approved his discharge under the provisions of chapter 14 of AR 635-200. c. The ADRB upgraded the characterization of service because the ADRB believed his last positive urinalysis was covered under the limited use policy. However, the reason for his separation remained proper, equitable, and unchanged. The applicant believes the ADRB's upgrade should be sufficient to allow him to retire. The Army denied his request. He filed a lawsuit. 2. Considered against the holding in the Ruffin case and the language of AR 601-280, paragraph 3-16(e), the evidence indicates the Army acted properly when it discharged the applicant. 3. AR 601-280, paragraph 3-16(e), does not prevent the Army from involuntarily separating Soldiers for misconduct. The provisions of 3-16(e) are designed to prevent the injustice of the Army automatically separating a career Soldier merely for having exceeded his or her RCP. An RCP is the maximum number of years of active service an enlisted Soldier can have before he or she must either be selected for promotion or leave the Army. The RCP is part of the Army’s "up or out" system and is designed to incentivize Soldiers who wish to make the Army a career. Conversely, it discourages Soldiers from providing mediocre performance since doing so will diminish their chances of promotion, which in turn diminishes their chances for being retained in the Army for a full career. 4. RCPs vary by rank. For example, the RCP for an E-7 (sergeant first class) is usually around 26 years. If by year 26 an E-7 fails to be selected for promotion to E-8, he must be separated from the Army. But since he had already served more than 20 years, he would be eligible for retirement. The RCP for an E-6 is usually 20 years. Thus, an NCO who achieves the rank/grade of SSG/E-6 can be reasonably confident of staying in the Army long enough to attain 20 years (and be eligible for the benefits of military retirement) even if he never again is selected for promotion. But what if in his 19th year a SSG engages in minor misconduct or temporarily performs poorly at his job such that he/she is disciplined and, as a result, is reduced to SGT/E-5? Hypothetically, this Soldier would be subject to immediate separation from the Army since the RCP for an E-5 is usually around 14 years. This theoretical circumstance could occur despite the fact that the Soldier had served nearly long enough to achieve retirement. 5. The provisions of AR 601-280, paragraph 3-16(e), are designed to prevent such an injustice. The provisions of 3-16(e) are inapplicable in this case because the applicant was not separated for exceeding his RCP. Instead, after his case was heard before an administrative separation board, he was separated for a pattern of misconduct. An argument that the final sentence in paragraph 3-16(e) applies to all enlisted Soldiers, whether or not reduced in rank, is wrong for several reasons. First, such an interpretation ignores the context of the sentence. The sentence at issue is the final sentence of a paragraph that speaks exclusively about Soldiers reduced in rank. Indeed, the first sentence of the paragraph is not so much a sentence as it is a paragraph heading: "Reductions in rank." Second, an interpretation that the final sentence applies to all Soldiers would rob commanders of their ability to administratively discipline and separate Soldiers simply because they had reached 18 years of service. This is illogical. 6. This interpretation of paragraph 3-16(e) is consistent with that of the Secretary of the Army in the 28 January 2014 memorandum cited above. 7. Thus, paragraph 3-16(e) does not make immune from involuntary separation any Soldier who attains 18 years of Army service. However, Soldiers who have reached the 18-year mark are entitled to enhanced procedural rights when subject to involuntary separation actions. These enhanced rights include (1) that the separation authority is raised from the installation/division commander to the Secretary of the Army (or his designee) and (2) that the separation must occur under "adverse conditions." 8. The appellate court ruling in Ruffin v. United States should not be taken as standing for the proposition that 10 USC 1176 automatically protects Soldiers in the applicant’s circumstances unless, and only unless, the discharge characterization is "other than honorable." Whether a Soldier is involuntarily separated under "adverse conditions" requires inquiry beyond merely noting the Soldier’s characterization of service. Congress chose the phrase "under other than adverse conditions" when it could have chosen “and the characterization of service is more favorable than ‘under other than honorable conditions'." Because it chose the former and not the latter, the relevant conditions of the separation action require scrutiny, and this scrutiny should extend beyond merely referring to the service characterization. 9. This interpretation is supported by the language of Title 32, Code of Federal Regulations, section 88.3, which provides that “discharge under adverse conditions is determined by referring to the reason for separation as well as the enlisted member’s service” (emphasis added). In the applicant’s case, the reason for his involuntary separation was a pattern of misconduct. The conditions underlying that separation action were, and remain, being AWOL on multiple occasions, driving under the influence, and misuse of cocaine. The administrative board that heard applicant’s case and reviewed his record recommended his separation under other than honorable conditions. Although his discharge was later upgraded to honorable, his DD 214 still reflects a separation code "JKA," which denotes discharge for a pattern of misconduct. 10. At least one other federal court has recognized that service members who receive discharge characterizations more favorable than "other than honorable" can nonetheless be deemed to have been separated under adverse conditions. In Hoffman vs. United States, the Court of Federal Claims upheld the Air Force’s separation action after rejecting the plaintiff’s argument that he was protected by the sanctuary period (i.e., he had completed over 18 years of active federal service). Given that the Air Force officer regulation in Hoffman is likely based on statutory foundations similar to the enlisted statutes at issue in this case, Hoffman is a persuasive decision relative to evidence presented in this case. 11. The evidence shows the applicant was involuntarily separated under adverse conditions, despite the ADRB’s subsequent decision to upgrade his discharge to an honorable discharge. These adverse conditions include the applicant’s underlying misconduct which prompted the separation action and the separation code on his DD 214 denoting separation for a pattern of misconduct. The applicant has not shown by a preponderance of evidence that an error or injustice has occurred. 12. As for the correction of his DD Form 214 to show he served in Operation Enduring Freedom, AR 635-5 states for an active duty Soldier deployed with his or her unit during their continuous period of active service, enter in item 18 the statement "Service in (Name of Country Deployed) From YYYYMMDD - YYYYMMDD)." a. In the absence of clear evidence, the Board may examine other documents in the service record to establish if and when a Soldier deployed or served in combat. Here, the applicant's OMPF does not contain any documents confirming deployment to a HFP/IDP area. There are no deployment orders, TCS, TDY, or manifest reports showing he deployed in support of Operation Enduring Freedom. Likewise, none of his award certificates or NCOERs mentions deployment in support of Operation Enduring Freedom. b. His pay records do not reflect he received HFP/IDP for any deployment since Operation Enduring Freedom began. The fact that his unit may have been ordered deployed does not mean he actually did. There is insufficient evidence in which to grant this portion of his request. If he can provide a Leave and Earnings Statement showing receipt of HFP/IDP or a travel settlement voucher showing the country and dates of deployment, he may re-petition this Board within its established timelines. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ___x_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________x___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150009337 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150009337 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1