IN THE CASE OF:	  

		BOARD DATE:	        7 August 2008

		DOCKET NUMBER:  AR20080008975 


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.  The applicant requests that the narrative reason for separation be changed from "Misconduct" to "Secretarial Authority" and in effect, that he be issued a discharge order authorizing him separation pay.  

2.  The applicant states that he completed 10 years of honorable military service, but was forced out of the Army with no compensation based on questionable charges of misconduct.  

3.  The applicant did not provide any additional documentary evidence in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army for a period of 
4 years on 5 May 1994.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 42L (Administration Specialist).  He also executed two 3-year reenlistments on 
16 May 1997 and 28 February 2002.  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.  

3.  The applicant’s awards and decorations include the Army Commendation Medal (2nd Award), the Army Achievement Medal (3rd Award), the Good Conduct Medal (2nd Award), the National Defense Service Medal, the Global War on Terrorism Service Medal, the Korea Defense Service Medal, the Noncommissioned Officer’s Professional Development Service Ribbon with numeral two, the Army Service Ribbon, the Overseas Service Ribbon (2nd Award), and the Driver/Mechanic Badge with Driver-W Bar.

4.  On 13 February 2003, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a general order on or about 23 January 2003, by wrongfully obtaining the address of a military person in order to socialize with her.  His punishment consisted of reduction to specialist (SPC)/E-4 (suspended until 11 August 2003), a forfeiture of $912.00 pay for 2 months (suspended until 
13 April 2003), and 45 days of extra duty.  

5.  On 2 December 2003, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for two instances of being derelict in the performance of his duties in that he willfully and wrongfully made personal unofficial charges to his U.S. Government travel credit card and willfully failed to honor the official use limitation for the credit card, on or about 22 August 2003 and on or about 25 September 2003; and for misusing the U.S. Government travel credit card by wrongfully making personal unofficial charges, on or about 26 September 2003.  His punishment consisted of reduction to SPC/E-4, a forfeiture of $912.00 pay for 2 months, and 22 days of extra duty.  The applicant appealed his punishment on 2 December 2003 and after consideration of all matters presented in his appeal, on 22 December 2003, the senior commander suspended that portion of the punishment pertaining to the forfeiture of $912.00 pay for 2 months.

6.  On 24 February 2004, 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 Army Regulation 635-200 (Personnel Separations), for patterns of misconduct.  The specific basis of the recommendation was the applicant’s attempt to socialize with an applicant and misuse of his government credit card.  
7.  On 24 February 2004, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by an Administrative Separation Board.

8.  On 12 April 2004, by memorandum, the applicant’s senior commander and convening authority notified the applicant of the time, date, location, composition, uniform, and purpose of the administrative board.  The applicant was advised of his right to consult with counsel and present witnesses.  The applicant acknowledged receipt of the notification to appear before the administrative board and his rights to present evidence or witnesses during the board.    

9.  The board convened at Los Angeles, California, Military Entrance Processing Station (MEPS), at 0915 hours on 3 May 2004, to determine whether to administratively separate the applicant from the Army for a pattern of misconduct. The applicant and his legal advisor (the legal advisor was available telephonically) during the board and were afforded full opportunity to cross-examine adverse witnesses, to present evidence in his own behalf, and to testify in person or submit a statement.  The board adjourned at 1508 hours on 3 May 2004.

10.  The board reached a unanimous decision and found a definite pattern of misconduct had been established and therefore recommended to the approving authority that the applicant be separated from the Army with an Under Honorable Conditions (General) Discharge Certificate, with a suspension of 12 months.  The board president authenticated the report of proceedings as complete and accurate.  

11.  On 8 June 2004, the applicant’s senior commander and convening authority recommended disapproval of the 12-month suspension and immediate discharge with an Under Honorable Conditions (General) Discharge Certificate.

12.  On 21 June 2004, the separation authority reviewed all matters pertaining to the applicant’s misconduct and ordered the applicant discharged from the Army under the provisions of chapter 14-12b of Army Regulation 635-200 for a pattern of misconduct, with a General-Under Honorable Conditions Discharge Certificate. Accordingly, the applicant was discharged on 15 July 2004.  The DD Form 214 he was issued at the time of his discharge shows he was discharged in accordance with chapter 14-12b of Army Regulation 635-200.  Item 28 (Narrative Reason for Separation) of the applicant’s DD Form 214 shows the entry “Misconduct” and Item 26 (Separation Code) shows the entry “JKA.”  This form further shows he completed 10 years, 2 months, and 11 days of creditable military service. 

13.  On 22 December 2006, the Army Discharge Review Board (ADRB) granted the applicant relief in the form of an upgrade of the characterization of service to fully honorable.  However, the ADRB determined that the reason for the discharge was both proper and equitable and voted not to change it.  

14.  On 21 May 2008, the ADRB granted the applicant relief in the form of a change of the separation authority and the narrative reason for separation to "Secretarial Authority" and the separation code to "JFF."

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation in effect at the time showed that the SPD code "JKA" specified the narrative reason for separation as an involuntary discharge for "Misconduct.” 

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military 
Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  
Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  

17.  Department of Defense Instruction (DODI) 1332.29, paragraph 3.1., Full Separation Pay (Nondisability), states that full payment of nondisability separation pay is authorized to members of the Regular and Reserve components involuntarily separated from active duty who meet the following conditions:

	a.  the member is on active duty or full time National Guard duty and has completed at least 6 years, but fewer than 20 years of active service.  For Reserve members not on the active duty list when separated, 6 years of continuous active duty or full time National Guard must have preceded immediately before such separation.  A period of active duty is continuous if any break in military service does not exceed 30 days; 

	b.  the service member's separation is characterized as honorable; and

	c.  the service member is being involuntarily separated through either the denial of reenlistment or the denial of continuation on active duty or full time National Guard duty, when the member is a Regular Army commissioned or warrant officer, other than a commissioned warrant officer, separated or transferred to the Retired Reserve under chapters 361, 363, 573, 861, or 863 of Title 10, U.S. Code, or a Reserve commissioned officer on the active duty list or a Reserve warrant officer who is separated for similar reasons under Service policies.

18.  Department of Defense Financial Management Regulation is issued under the authority of DOD Instruction 7000.14, “’DOD Financial Management Policy and Procedures.”  It governs financial management by establishing and enforcing requirements, principles, standards, systems, procedures, and practices necessary to comply with financial management statutory and regulatory requirements applicable to the Department of Defense.  Volume 7A governs military pay policy and procedures for active duty and Reserve pay.  Paragraph 3502, Chapter 35 of Volume 7A of the DOD Financial Management Regulation states, in pertinent part, that effective 20 June 1991, full payment of nondisability separation pay has been authorized to military service members of the Regular and Reserve Components who have been involuntarily separated from active duty and have met each of the following four conditions: 

	a.  The member has met one of the following criteria for active military service: 

		(1)  the member is on active duty or full-time National Guard duty and has completed at least 6 years, but less than 20 years, active service. Reserve members not on the active duty list when separated must have 6 years of continuous active duty or full-time National Guard duty immediately preceding separation.  A period of active duty is considered continuous if any break in active service does not exceed 30 days;

		(2)  the member (other than a regular enlisted member) was on active duty or full-time National Guard duty on November 5, 1990 and on that date had 5 or more, but less than 6 years of active service.  Reserve members not on the active duty list when separated must have 5 years of continuous active duty or full-time National Guard duty immediately preceding separation.  A period of active duty is considered continuous if any break in active service does not exceed 30 days;

		(3)  effective December 1, 1993, a member who is a Regular officer and is separated under chapter 36 of 10 U.S.C. must have completed at least 6 years, but less than 20 years, of active service; or

		(4)  the member, who is a Regular officer and is separated under chapter 36 of 10 U.S.C. must have completed 5 or more years, but less than 6 years, of active service on November 30, 1993.

	b.  The member’s separation must be characterized as “honorable” and none of the conditions apply that are listed in paragraph 350202, below. 

	c.  A member who is separated involuntarily through either the denial of reenlistment or the denial of continuation on active duty or full-time National Guard duty must meet one of the following four specific conditions:

		(1)  the member must be fully qualified for retention but be denied reenlistment or continuation.  This includes a Military Service member who is eligible for promotion as established by the Secretary of the Military Service concerned, but is denied reenlistment or continuation on active duty under established promotion or high year of tenure policies;

		(2)  the member must be fully qualified for retention, but be involuntarily separated under a Reduction in Force by authority designated by the Secretary of the Military Service concerned;

		(3)  the member, if a Regular officer, commissioned or warrant, must be separated under 10 U.S.C. 564, 1165, or 6383, or chapter 36; if a Reserve commissioned officer, other than a commissioned warrant officer, must be separated or transferred to the retired Reserve under 10 U.S.C., chapters 361, 363, 573, 861, or 863; or if a Reserve commissioned officer on the active duty list or a Reserve warrant officer must be separated for similar reasons under Military Service policies; or

		(4)  the member must be denied reenlistment or continuation on active duty or full-time National Guard duty under subparagraphs 350201.A.3.a through c, above, and have accepted an earlier separation from active duty.

		(5)  the member must have entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of a Reserve Component of the Armed Forces for a minimum period of 3 years following the separation from active duty: 

		(6)  A member who enters into this written agreement and who is qualified for service in the Ready Reserve will, upon separation from active duty, be enlisted or appointed, as appropriate, as a Reserve member by the Military Service concerned. If the person has a service obligation under of 10 U.S.C. 651, or any other law, that is not completed at the time of separation from active duty, the 3-year obligation begins on the day after the day on which the member completes the prior obligation. 

		(7)  A member who enters into this written agreement and who is not qualified for enlistment or appointment in the Ready Reserves need not be enlisted or appointed by the Military Service concerned to be considered to have met this condition of eligibility for separation pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is requesting, in effect, that he be issued a discharge order authorizing him separation pay.  He bases this request, in part, on the ADRB's 22 December 2006 review of his discharge which resulted in a change of characterization from "General, Under Honorable Conditions " to "Honorable." 

2.  The evidence of record shows that the applicant was charged with a pattern of misconduct and was notified of the initiation of separation action.  He acknowledged receipt of the notification and requested an administrative separation Board.  Accordingly, a board convened and reached a unanimous decision and recommended to the approving authority that the applicant be separated from the Army with a General Discharge Certificate, with a suspension of 12 months.  The separation authority disapproved the suspension and directed immediate separation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant’s narrative reason for separation was assigned based on the fact that he was separated under the provisions of paragraph 14-12b of Army Regulation 635-200 due to misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct." 



4.  The ADRB, as a matter of equity, changed the applicant's discharge to honorable, his separation authority and narrative reason for separation to "Secretarial Authority," and the separation code to "JFF."  The ADRB’s decision however, did not address or determine if any monetary benefits were entitled by virtue of the changes directed.  

5.  Entitlement to separation pay is not based on the type of discharge the applicant received, but the SPD code he received upon discharge.  His SPD code, shown in Item 26 of the reissued DD Form 214 is “JFF” (Secretarial Authority) which does not entitle him to separation or severance pay.

6.  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.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



															XXX
      _______ _   _______   ___
               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)                                         AR20080008975



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008975



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1