RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 July 2007
      DOCKET NUMBER:  AR20060017087


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Ms. Loretta D. Gulley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. James R. Hastie               |     |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 he be provided separation pay.


2.  The applicant states, in effect, that he is requesting separation pay
from the Army in the amount of $16,011.09 as entitled to under the DOD
(Department of Defense) Financial Management Regulations.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge From Active Duty, a copy of OSA Form 172 (Case Report
and Directive) from the Army Discharge Review Boards (ADRB), and a copy of
the memorandum from the U.S. Trial Defense Service, Region II, dated 11
June 2003, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
29 August 2002.  The application submitted in this case is dated 28
November 2006.

2.  The applicant enlisted in the Regular Army on 21 June 1990 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 63S (Heavy Wheeled Vehicle
Mechanic).  His last reenlistment was on 30 August 2000.

3.  On 26 December 2001, the applicant received a General Officer
Memorandum of Reprimand for driving under the influence of alcohol and
improper land usage.

4.  On 1 February 2002, the applicant received a General Officer Memorandum
of Reprimand for driving under the influence of alcohol and driving with a
suspended license.

5.  On 20 March 2002, the applicant received a locally imposed bar to
reenlistment approved by the Commanding General (CG) Fort Stewart, Georgia.
On 17 May 2002, the applicant acknowledged receipt of the approved bar
action and elected not to submit an appeal.

6.  On 18 July 2002, the applicant’s commander notified the applicant that
he was initiating action to separate him from the service under the
provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for
misconduct-commission of a serious offense with an under other than
honorable conditions discharge.  The commander cited as the basis for his
recommendation, the offensives of apprehension by the civilian authorities
for driving under the influence of alcohol on two different occasions.

7.  On 18 July 2002, the applicant, through counsel, acknowledged receipt
of the proposed separation action.  On 19 July 2002, the applicant
requested a conditional waiver of an administrative separation board.  He
acknowledged that he might encounter substantial prejudice in civilian life
and may not be eligible for many or all benefits administered by the
Department of Veterans Affairs if a general discharge under honorable
conditions was issued to him.  He elected to submit a statement in his own
behalf; however, the records do not contain his statement.  On 22 July
2002, the applicant’s request for a conditional waiver was disapproved.
His request for a personnel appearance was approved but he failed to appear
before the Board.

8.  On 28 August 2002, the separation authority approved the applicant’s
discharge and directed that he receive an under other than honorable
discharge. On 29 August 2002, the applicant was discharged accordingly.
The DD Form 214 he was issued confirms he completed a total of 12 years,
2 months and
9 days of creditable active military service.

9.  On 11 June 2003, the U.S. Army Trial Defense Service, Region II, Fort
Stewart Field Office, Fort Stewart Georgia submitted a request to the ABCMR
requesting that they correct the applicant’s military records to reflect a
normal ETS (Expiration of Term of Service) on 30 August 2002 with an
honorable discharge.  The request also stated the ETS would have been
triggered by a denial of retention caused be a local bar to reenlistment.
The applicant also requests separation pay in the amount of $16, 011.09.
The U.S. Trial Defense Service, Region II continues that the applicant was
denied the effective assistance of his right to counsel at the time of his
separation board and the Soldier was denied due process of law due to
numerous procedural and substantive errors and irregularities which
occurred during his administrative separation.  The application was
forwarded to the ADRB for processing.

10.  On 20 August 2004, the ADRB determined that the applicant's discharge
was improper.  The evidence of record showed that the applicant was
discharged upon reaching his ETS date.  The ADRB directed an upgrade of the
applicant's discharge, the characterization of his service to fully
honorable; a change to the narrative reason for separation to Secretarial
Authority; a change to the authority for his discharge to Army Regulation
635-200, Chapter 5; and the issuance of a new DD Form 214 (Certificate of
Release or Discharge from Active Duty).  This action did not entail a
change to the RE code.
11.  The applicant was issued a new DD Form 214 showing his separation
from the service, in pay grade E-5, on 29 August 2002, under the
provisions of Army
Regulation 635-200, Chapter 5-3, Secretarial Authority, with an honorable
discharge.  The applicant's separation code was changed to "JFF" on his DD
Form 214, the RE code remained unchanged.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic
authority for the separation of enlisted personnel.  Chapter 14 establishes
policy and prescribes procedures for separating members for misconduct.
Specific categories include minor disciplinary infractions, a pattern of
misconduct, commission of a serious offense, and convictions by civil
authorities.  Action will be taken to separate a member for misconduct when
it is clearly established that rehabilitation is impracticable or is
unlikely to succeed.  A discharge under other than honorable conditions is
normally appropriate for a Soldier discharged under this chapter.  However,
the separation authority may direct a general discharge if such is merited
by the Soldier’s overall record.  Only a general court-martial convening
authority may approve an honorable discharge or delegate approval authority
for an honorable discharge under this provision of regulation.

13.  Army Regulation 635-5-1 prescribes the specific authorities
(regulatory, statutory, or other directives), the reasons for the
separation of members from active military service, and the separation
program designator (SPD) to be used for these stated reasons.  The
regulation shows that the SPD code of "JKQ" is
appropriate for involuntary discharge when the narrative reason for
separation is "misconduct" under Army Regulation 635-200, paragraph 14-12c.
 The SPD code of "JFF" is appropriate for an involuntary discharge when the
narrative reason for separation is, "Secretarial Authority," under Army
Regulation 635-200, paragraph 5-3.

14.  Department of Defense Instruction 1332.29, Eligibility of Regular and
Reserve Personnel for Separation Pay, dated 10 June 1991, implemented Title
10, United States Code, section 1174, for the Department of the Defense.
Paragraph 3.2.3.1.3, of this instruction provided that a Soldier who was
separated for the convenience of the government was entitled to half
separation pay if he meets the other criteria for receiving that pay (e.g.
over 6 years of active service).  A discharge under Army Regulation 635-
200, Chapter 5, based upon Secretarial Authority is a convenience of the
government discharge.  However, paragraph 3.4.12. of the instruction
empowered the Secretary of the Army to deny payment of separation pay if
the conditions under which the Soldier was separated do not warrant
payment.

15.  Title 10, United States Code, section 1174(b)(1) provides 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 6 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
the such pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidenced shows that the applicant received two General Officer
Memoranda of Reprimand and a Locally Imposed Bar to Reenlistment.  The
applicant's commander informed him that a recommendation for his
separation from the Army would be initiated for his misconduct.

2.  The applicant voluntarily waived consideration of his case by an
administrative separation board contingent with his receiving a
characterization of service, or description of separation, of no less than
general.  The applicant was discharged from the Army for misconduct on 29
August 2002 with a under other than honorable discharge.  An RE code of "3"
and separation code of "JKQ" was applied to his DD Form 214.  The narrative
reason for the applicant’s separation was shown as “Misconduct.”  The RE
Code applied to the applicant's DD Form 214 was commensurate with and
corresponds to the reason for the applicant's discharge.

3.  On 20 August 2004, the ADRB partially granted the applicant’s request
to have his discharge and the character of his service upgraded.  The ADRB
granted the applicant an honorable discharge, restored his rank and pay
grade were restored to Segeant/E-5, and changed the narrative reason for
separation to Secretarial Authority.  The SPD code was changed to
correspond with the narrative reason.  The RE Code was unchanged.  In view
of the circumstances in this case, the assigned RE code was and is still
appropriate.  The ADRB rejected the request for separation pay since it
does not fall within the purview of the ADRB.

4.  The applicant also requests entitlement to separation pay based on
changes to his discharge.  Although the applicant was granted an upgrade of
his discharge, a change in the characterization of his service, and a
change to the narrative reason for his separation; these changes were based
upon the fact that his discharge was improper since it occurred on his ETS
date with a under other than honorable discharge.  That change does not
erase the underlying misconduct that resulted in his separation.
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.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JI____  ___RML_  ___JRH _  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.




                                         __  John Infante_____
                                            CHAIRPERSON





                                    INDEX

|CASE ID                 |AR20060017087                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/07/24                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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