ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  1 April 2019

	DOCKET NUMBER:  AR20160009616


APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in item 18 (Remarks) and item 26 (Separation Code) a code that authorized him full separation pay. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214, ending on 10 January 2016
* Enlisted Record Brief (ERB)
* 2 DA Form 21059 (Service School Academic Evaluation Report)
* Dismissal memorandum from Senior Leader Course
* Separation orders with amendments
* U.S. Army Reserve Enlistment Contract

FACTS:

1.  The applicant states, in effect, his ERB reflected a reenlistment code of 9W which prohibited him from reenlistment.  

2.  A review of the applicant’s service records shows: 

	a.  He enlisted in the Regular Army on 9 October 2003.  He held an infantry specialty.

	b.  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank of staff sergeant (SSG).

	c.  He attended the Senior Leader Course (SLC) from October 2011 to November 2011 but he failed to achievement course standards.  He was dismissed from class.  He then attended SLC a second time from February to March 2012 and passed the course. 

	d.  His ERB shows in Section III (Service Data) he had a Reenlistment Eligibility Prohibition Code 9W (Not eligible due to SSG NCO Evaluation report or NCO Education System eligibility requirements).
	e.  On 26 August 2015, Headquarters, Fort Polk, LA published Orders 238-0314 ordering him to report to the Transition Point for separation processing effective 9 January 2016.  The orders indicated he was authorized full separation pay in accordance with Title 10, U.S. Code, section 1174.

	f.  On 17 November 2015, HRC approved the applicant to transition to the Reserve Component.  An official stated the Immediate Reenlistment Prohibition Codes (IMREPR) 9W Waiver for the applicant was approved.  He indicated that the applicant would not be retained on active duty and was ineligible to reenlist.  He had failed to meet course academic standards while attending Advanced Leader Course (ALC).  

	g.  On 20 November 2015, the applicant signed a DA Form 4187 (Personnel Action) and indicated the following: 

		(1)  In order to receive separation pay, he agreed to serve in the Ready Reserve of a Reserve component of the Armed Forces for a period of not less than 3 years following his separation from Active Duty.

		(2)  He understood that if he were qualified for the Ready Reserves, upon separation from Active Duty, he would be enlisted or appointed, as appropriate, as a Reserve member by the Military Service concerned.

		(3)  If he had a service obligation that is not completed at the time he was separated from Active Duty, the 3-year Ready Reserve obligation shall begin on the day after the day on which he completed his existing obligation.

		(4)  He understood that this document would not become a written agreement, for the purpose of eligibility for separation pay according to Title 10, U.S. Code, section 1174, and DOD Instruction 1332.29, paragraph 3.1.4, unless it is endorsed by a Ready Reserve Career Counselor, or other official authorized to contract Soldiers into the Ready Reserve, certifying that he was eligible for such service. 

		(5)  If, following the endorsement of this document as detailed above, it is determined that he was not qualified for appointment or enlistment in the Ready Reserves, he would not be enlisted or appointed by the Military Service concerned and would not be considered to have met this condition of eligibility for separation pay.

	h.  On 16 December 2015, he executed a 3-year enlistment in the U.S. Army Reserve and on the same date, Headquarters, 81st Regional Support Command, published Orders 16-321-00080 reassigning him from the Ready Reserve to the Standby Reserve, effective 23 November 2016. 

	i.  On 21 December 2015, Orders 355-0313 amended his separation orders to show he was authorized half separation pay.  

	j.  On 5 January 2016, Orders 005-0317 also amended his separation orders to show he was authorized half separation pay. 

	k.  He was honorably discharged from active duty on 10 January 2016 in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) due to “Non-retention on Active Duty.”  His DD Form 214 shows in:

* item 18 (Remarks) the entry “e was assigned Separation Code “Separation Pay $26,550.41
* Item 26 (Separation Code), the entry JGH

	l.  On 15 January 2019, HRC published orders honorably discharging the applicant from the U.S. Army Reserve effective 15 January 2019. 

3.  An advisory opinion was received from the Army G-1 on 19 December 2017 in the processing of this case.  An HRC official stated that after careful review, the Army G-1 determined that the applicant’s petition for full involuntary separation payment level is not valid in accordance with DODI 1332.29 and AR 637-2.  The installation correctly documented the payment level in order 005-0317 dated 5 January 2016.  As a condition of separation pay, 10 US.C. § 1174 requires a Soldier to sign a written agreement to serve a minimum of three years in the ready reserve of a Reserve Component (RC). Signing a RC contract does not determine the level of payment for involuntary separation pay.  If qualified, the Soldier must serve immediately after leaving active duty.  The applicant was not fully qualified for retention in accordance with DODI 1332.29, paragraph 3.1.b. (3) (a) since he failed to meet course academic standards while attending his Advance Leader Course.

4.  The applicant was provided with a copy of this advisory opinion o give him an opportunity to submit a rebuttal.  He did not respond. 

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions and the advisory opinion were carefully considered.  Based upon the preponderance of evidence the Board agreed the case does not have merit.  In addition, the applicant did not provide a rebuttal to the advisory opinion attesting to G-1s facts and recommendation to disapprove the request.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


	 
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.


ADMINISTRATIVE NOTE(S):

Not Applicable

REFERENCES:

1.  Title 10, U.S. Code, section 1174 (Separation pay upon involuntary discharge or release from active duty), 

	a.  sub-section (b), (1)  A regular enlisted member of an armed force who is discharged involuntarily or as the result of the denial of the reenlistment of the member and who has completed six or more, but less than 20, years of active service immediately before that discharge is entitled to separation pay computed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay.  (2)  Separation pay of an enlisted member shall be computed under paragraph (1) of subsection (d), except that such pay shall be computed under paragraph (2) of such subsection in the case of a member who is discharged under criteria prescribed by the Secretary of Defense.

	b.  sub-section (d), Amount of Separation Pay.—The amount of separation pay which may be paid to a member under this section is— (1) 10 percent of the product of (A) his years of active service, and (B) 12 times the monthly basic pay to which he was entitled at the time of his discharge or release from active duty; or (2) one-half of the amount computed under clause (1).
2.  DODI 1332.29 (Involuntary Separation Pay, Non-Disability), establishes policy, assigns responsibilities, and prescribes procedures concerning eligibility and requirements for receipt of separation pay for Active and Reserve Component Service members who are involuntarily separated from active duty or active service in accordance with Section 1174 of Title 10. 

	a.  Paragraph 3.1(a), full separation pay is authorized under five conditions, one of which is that the service member’s separation is characterized as “honorable” and none of the conditions in Paragraph 3.4. apply.  One of those conditions is that the service member is being involuntarily separated by the Military Service concerned through either the denial of reenlistment or the denial of continuation on active duty or in an active service status, under one of the several specific conditions.

	b.  Paragraph 3.1(b), half separation pay is authorized to members of the Active and Reserve Components who are involuntarily separated from active duty/service and who meet each of the five conditions.  One of those conditions is that the service member has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve, as provided for in Paragraph 3.1.a.(4).

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160009616


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