RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 April 2007
      DOCKET NUMBER:  AR20060014183


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his 31 January 2006 discharge
be voided and that his record be corrected to show he was retired by reason
of length of service.

2.  The applicant states, in effect, that he failed to request retirement
because he intended to reenlist for another two years.  He was waiting for
a decision on a prior accusation from two years earlier (November 2003)
before he could request reenlistment.  Two years later, in July 2005, when
Human Resources Command, St. Louis (HRC-St. Louis) officials informed him
he could reenlist.  He submitted a request for reenlistment on 29 July
2005, and forwarded it to his supervisors via electronic mail (e-mail)
because of the sense of urgency due to his expiration of term of service
(ETS) approaching and he had been extended every three months for the
previous year.  Shortly after his reenlistment request was submitted, his
supervisor informed him the battalion commander wanted to meet with him.

3.  The applicant states the meeting with his battalion commander which
took place on 14 August 2005, resulted in a bar to reenlistment being
imposed on him based on some accusation that he was unaware of.  He claims
there was no truth to the accusation.  The bar to reenlistment he was
presented indicated that he had missed 50 days of work, failed to call his
supervisor, and when he was at work, he worked for two hours.  He claims he
had no idea about any of these incidents or of who the accuser was.  He
states there are no counseling records, or any other documents supporting
these accusations.  He states that he fought the bar to reenlistment and
requested assistance from the Inspector General (IG).  He submitted a
written appeal of the bar to reenlistment.  He claims an HRC-St. Louis
official denied his appeal and he received orders to report to Fort Knox,
Kentucky, for discharge processing.  Once he got to Fort Knox, his case
worker asked him if he talked to an official he did not know who had been
trying to contact him about his retirement.  Once he was discharged, he
received an
e-mail from the official looking for him.  He contacted this official who
indicated that he had been trying to get in touch with him to inform him he
could request retirement because he did not want him to be discharged
without retirement.  He believes officials at HRC-St. Louis coordinated
their actions in order to deny him retirement.

4.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Separation Document (DD Form 214); E-
Mail Messages, dated between August 2005 and January 2006; and an
Application for Voluntary Retirement (DA Form 2339), dated 6 February 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was honorably discharged from
active duty on 31 January 2006, after completing 20 years and 9 days of
creditable active military service.

2.  On 29 July 2005, the applicant submitted a Personnel Action (DA Form
4187) requesting an indefinite reenlistment under the provisions of chapter
8, Army Regulation 140-111.

3.  On 13 August 2005, the applicant's unit commander prepared a Bar to
Reenlistment Certificate on the applicant.  The unit commander stated the
applicant's performance and work ethic had continued to be extremely
sub-standard in spite of his receiving a General Officer Memorandum of
Reprimand (GOMOR) on 17 April 2003, and a separation board action that
listed 24 separate incidents of misconduct.  The unit commander further
indicated that since 17 February there were over 50 days when the applicant
failed to come to work and failed to call his supervisor.  The commander
stated that when the applicant did come to work, he rarely worked over 2
hours.  The commander indicated this pattern of behavior was totally
unacceptable for a senior noncommissioned officer (NCO) and was disruptive
to good order and discipline of the unit's based at his location.

4.  The applicant provides a statement with the Bar to Reenlistment
Certificate that indicated he did not come to work for 50 days and failed
to call his supervisor, and that when he worked he only worked two hours a
day were not true.  He stated that he had not missed any days of work
unless he was on authorized leave or training holidays.  He stated that if
he was going to the doctor for him or his family, or attending his
children's school or dealing some other emergency, his supervisor was made
aware of his absence.  He states that he had been late in the last week or
two because he was attending physical training in the morning, but when
that occurred he stayed late to make up for it.  He stated that he did not
display or have poor behavior and did not lack commitment to the unit or
the United States Army Reserve (USAR).

5.  On 9 September 2005, the bar to reenlistment was approved by the 88th
RRC Commander, a major general.  On 18 November 2005, the applicant
indicated that he would appeal the bar to reenlistment.

6.  On 4 January 2006, the Chief, Active Guard Reserve (AGR)
Separations/Retirements Team, HRC-St. Louis, sent the applicant an e-mail
message that informed him his bar to reenlistment appeal had been denied
and that he therefore needed to submit a retirement application with a last
date of active duty of 31 January 2006 so that he could be placed on the
Retired List on 1 February 2006.  He further informed the applicant that
according to his current contract, his ETS was 31 January 2006 and since
his bar to reenlistment appeal had been denied, HRC-St. Louis would have no
choice but to discharge the applicant because of his ETS on 31 January 2006
because he was ineligible to extend; however, he was eligible to retire.

7.  On 31 January 2006, the applicant was honorably discharged by reason of
ETS.  The DD Form 214 he was issued confirms he completed a total of 20
years and 9 days of active military service and that he held the rank of
sergeant first class (SFC) on the date of his separation.

8.  On 6 February 2006, the applicant completed a DA Form 2339 requesting
voluntary retirement to this Board.

9.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, AGR Separations/Retirements Team, HRC-St. Louis.
This official stated that a review of the applicant's record shows that the
applicant is eligible to be retired with 20 years of active Federal service
under Title 10 of the United States Code, Section 3914 (10 USC 3914).  He
states the applicant was advised via e-mail on 4 January 2006 that he was
eligible for retirement and he was encouraged to submit the necessary
documents to be placed on the Retired List on 1 February 2006.  For unknown
reasons, the applicant failed to submit these documents and request
retirement and he was therefore, properly discharged on 31 January 2006.
This official recommends the effective date of the applicant's retirement
be 1 March 2006 instead of 1 February 2006 because he did not sign an
application for retirement until 6 February 2006, when he submitted his
ABCMR application.

10.  On 22 September 2006, the applicant responded to the HRC-St. Louis
advisory opinion.  He stated that he received no support from his chain of
command or from the NCO support channel regarding his separation, and as a
result he should receive the retirement benefits he is entitled to
effective
1 February 2006.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) contains the Army's enlisted administrative separations
policy.  Chapter 12 sets policies and procedures for voluntary retirement
of Soldiers because of length of service and governs the retirement of
Soldiers (Active Army, ARNGUS, and USAR) who are retiring in their enlisted
status.  Paragraph 12-4 states, in pertinent part, that a Soldier who has
completed 20 but less than 30 years of AFS in the U.S. Armed Forces may be
retired at his or her request.

12.  10 USC 3914 contains the legal authority for voluntary retirement of
enlisted members with 20 or more, but less than 30 years, of active
military service.  It states, in pertinent part, that under regulations
prescribed by the Secretary of the Army, an enlisted member of the Army who
has at least 20, but less than 30, years of active military service, upon
his request, may be retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for voluntary retirement has been carefully
considered and found to have merit.  By law and regulation, an enlisted
member with at least 20, but less than 30, years of active military
service, upon request, may be retired.

2.  The evidence of record shows that the applicant intended to continue
his service by extending or reenlisting, which he requested in July 2005.
At that time, his unit commander prepared a bar to reenlistment certificate
on the applicant, which was ultimately approved on 9 September 2005 and
presented to the applicant on 18 November 2005.  The applicant expressed
his desire to appeal the bar to reenlistment; however the processing of
this appeal is unclear and his appeal was ultimately denied in late
December 2005 or early January 2006, and the applicant was finally advised
of retirement application procedures in an e-mail message, dated 4 January
2006, less than 30 days before his scheduled separation.

3.  Although there is no evidence suggesting the bar to reenlistment
imposed on the applicant was improper or inequitable, members of the
applicant's chain of command and officials from HRC-St. Louis should have
made a more serious effort to counsel the applicant on retirement
application procedures early on in the process, when the applicant first
initiated his bar to reenlistment appeal.  This would have ensured the
applicant was properly retired in the case of a denial of his appeal.
Absent any evidence that a serious effort was made by responsible officials
to counsel the applicant on his options during this process, it would be
appropriate to grant the requested relief.

4.  In view of the facts of this case, it would be appropriate to correct
the applicant's record by voiding his 31 January 2006 discharge under the
provisions of chapter 4, Army Regulation 635-200, by reason of completion
of required service; and to instead show his application for voluntary
retirement was approved and that he was released from active duty for the
purpose of voluntary retirement under the provisions of 10 USC 3914 and
Chapter 12, Army Regulation 635-200, by reason of voluntary retirement, on
that same date.  It would also be appropriate to show the applicant was
placed on the Retired List, in the grade of SFC, on 1 February 2006, and to
provide him all back retired pay due as a result.

BOARD VOTE:

___CG__  __MJF   _  __EEM__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
voiding his 31 January 2006 discharge under the provisions of chapter 4,
Army Regulation 635-200, by reason of completion of required service and to
instead show his request for voluntary retirement was approved and he was
released from active duty for the purpose of voluntary retirement under the
provisions of 10 USC 3914 and chapter 12, Army Regulation 635-200, by
reason of voluntary length of service retirement on that same date; by
showing he was placed on the Retired List, in the grade of sergeant first
class, on 1 February 2006; and by providing him all back retired pay due as
a result.




                                  _____Curtis Greenway____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014183                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/04/12                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2006/01/31                              |
|DISCHARGE AUTHORITY     |AR 635-200 C4                           |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |135.0500                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]