MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 October 2002
         DOCKET NUMBER: AR2002075783

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Arthur A. Omartian		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)

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APPLICANT REQUESTS: In effect, reinstatement into the Army or full separation pay.

APPLICANT STATES: In effect, that he was told by his defense counsel and a military judge that he would be able to extend his expiration of term of service (ETS) in order to retire as a staff sergeant/E-6 (SSG/E-6). He further claims that according to his supervisors at the time, and under the provisions of the governing regulations, he should have received full separation pay. He states that he was convicted by a special court-martial (SPCM) on 12 October 2001. The presiding Military Judge stated at that time that the applicant would be retained on active duty, that he would be able to extend his ETS date, and that he would be able to retire as a SSG/E-6. However, his unit went against the wishes of the Military Judge and decided to administratively separate him, but instead elected to give him a rehabilitative reassignment to a new unit. He claims that he proved himself and did his job at the new unit, but when the time came for him to request reenlistment or extension, the brigade commander disapproved his request. He claims that the brigade commander was involved in an incident with a female captain around that time, and was facing sexual harassment charges. As a result, the brigade commander was unable to render a clear and level headed decision in regard to his request for reenlistment. He asks that these factors be considered when his case is reviewed. He requests that if his reinstatement is not approved, that consideration be given to providing him full separation pay. He claims this is justified based on his case being extraordinary, and because denial would be unjust given his overall record of service.

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

On 25 May 2002, he was honorably discharged from the Regular Army after completing 17 years, 6 months, and 3 days of active military service. The separation document (DD Form 214) issued to him on the date of his separation confirms that he was discharged under the provisions of chapter 4, Army Regulation 635-200, by reason of ETS.

The DD Form 214 also verifies that the applicant held the rank of SSG/E-6 at the time of his discharge, and that he was assigned a Separation Program Designator (SPD) of JBK and a reentry (RE) code of RE-3.

On 12 October 2001, the applicant was convicted of the wrongful use of cocaine by a SPCM. The resultant sentence included a reprimand and a reduction to SSG/E-6. A memorandum from the Military Judge who presided in the case, dated 14 November 2001, indicates that before determining the applicant’s sentence, the Judge reviewed more than 50 evaluation reports, certificates, awards, and commendations, which he found to be compelling evidence of the applicant’s outstanding prior service.
The Military Judge also stated that based on the nature of the offense, the witnesses who testified on his behalf, and the documentary evidence admitted by the defense, he determined that a reduction below the rank of SSG/E-6 or a punitive discharge were not warranted. He presumed that the applicant’s ETS date would subsequently be extended to allow him to retire after 20 years of service as a SSG/E-6.

The SPCM findings were promulgated in SPCM Order Number 2, issued by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, dated 20 February 2002. In this order, the SPCM convening authority approved the sentence and reprimanded the applicant for his conduct.

On 20 May 2002, Orders Number 140-0023, issued by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, reassigned the applicant to the transition point for transition processing and for discharge on
25 May 2002. These orders contained additional instructions that indicated that the applicant was entitled to one half separation pay in accordance with Title 10, United States Code, Section 1174 (10 USC 1174).

Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states, in pertinent part, that the SPD code of JBK is the appropriate code to assign to Regular Army (RA) soldiers separating under the provisions of chapter 4, Army Regulation 635-200, by reason of ETS, who are ineligible for, barred from, or otherwise denied reenlistment, who are separated at the completion of their enlistment. In addition, the SPD/RE Code Cross Reference Table establishes the RE code of RE-3 as the proper reentry code to assign to soldiers separated under this authority and for this reason. RE-3 is the code assigned to soldiers who are disqualified from reenlistment, but whose disqualification is waivable.

10 USC 1174 contains the legal authority for the payment of separation pay. It states that 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. The Secretary of the Army’s policy in regard to the payment of separation pay stipulates that soldiers assigned a SPD code of JBK are authorized to receive one half separation pay.

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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 Board notes the applicant’s contention that he was unjustly denied reenlistment based on the clouded judgment of his brigade commander who went against the wishes of a military judge when he denied the applicant’s request for reenlistment. However, it finds insufficient evidence to support this allegation.

2. The available evidence does not contain the actual denial of the applicant’s reenlistment or extension of his enlistment or any documentation that contained the reasons or basis for these denials. However, it does contain a properly constituted DD Form 214 which was authenticated by the applicant. This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process.

3. The evidence of record further shows that the applicant was discharged in accordance with applicable regulations, which includes the assignment of the JBK SPD code and the RE-3 code. The record also shows that the applicant was authorized to receive one half separation pay under the provisions of the existing law and regulation.

4. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, it finds insufficient evidence to support the requested relief.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. 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

__RVO__ __MKP _ __AAO __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075783
SUFFIX
RECON
DATE BOARDED	2002/10/01
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2002/05/25
DISCHARGE AUTHORITY	AR 635-200 C4
DISCHARGE REASON	ETS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 192	110.0300
2.
3.
4.
5.
6.