RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2008
	DOCKET NUMBER:  AR20070011060 


	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. Antoinette Farley

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons 

Chairperson

Ms. Eloise C. Pendergast 

Member

Mr. Donald L. Lewy

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 record be corrected to show entitlement to separation pay. 

2.  The applicant states, in effect, that on 31 May 2007, the Army Discharge Review Board (ADRB) upgraded his discharge to a fully honorable discharge after determining that the discharge and separation authority procedures were not followed.  The applicant further states that he was told since he did not receive a "fully" honorable discharge, he was not eligible to receive separation pay.

3.  The applicant adds that during his separation processing he received Chapter Rights and Benefits Information fact sheets from the Fort Carson Trial Defense Service.  The applicant continues that the sheet shows that a Soldier, who was involuntarily separated with an honorable discharge and has a minimum of six years service, may be eligible for full separation pay.  

4.  The applicant provides a copy of his ADRB proceedings, dated 31 May 2007 and Chapter Rights and Benefits Information fact sheets in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army on 8 September 1998 for a period of 3 years.  The applicant's record shows he completed basic training and advanced individual training and was awarded military occupational specialty 19K (Armor Crewman).  The highest rank he attained while serving on active duty was sergeant/pay grade E-5 on 29 June 2001.  

2.  The applicant's record reveals a disciplinary history which shows that, on 
18 November 2004, he received counseling for being Absent Without Leave (AWOL) during the period 12 January 2003 through 22 January 2003, and for desertion during the period 13 October 2004 through 9 November 2004.

3.  On 7 February 2003, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for being AWOL on or about 12 January 2003 through 22 January 2003 and again from 13 October 2004 through 8 November 2004.  His punishment consisted of a reduction to specialist/pay grade E-3, a forfeiture of $400.00 pay per month for 2 months, and 45 days restriction.   

4.  On 28 December 2004, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Personnel Separation), paragraph 14 for misconduct-commission of a serious offense.  The reason for the proposed action was due to being AWOL during the period 12 January 2003 through 22 January 2003, and during the period 13 October 2004 through 9 November 2004.  The applicant was advised of his rights, consulted with counsel, and voluntarily waived consideration of his case by a board of officers. The applicant did not submit a statement in his own behalf. The intermediate commander recommended approval of a general under honorable conditions discharge.

5.  On 5 January 2005, the separation authority waived rehabilitation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct with a general under honorable discharge.

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 January 2005, shows he was separated under the provisions of paragraph 14-12c, Army Regulation 635-200, for misconduct, and issued a general under honorable conditions discharge in the rank of specialist/pay grade E-4.  The DD Form 214 confirms he completed a total of 6 years, 2 months, and 29 days of creditable active military service.  His DD Form 214 shows an RE code of RE-3 and a Separation Program Designator (SPD) code of "JKQ" which indicates involuntary separation for misconduct.

7.  On 31 May 2006, the ADRB found the applicant's discharge improper based on it being approved by an improper separation authority; and voted to upgrade the applicant's discharge to an honorable discharge and to change the authority and reason for his separation.  This decision was based on the fact that the applicant's chain of command used improper board notification procedures which required General Court-Martial Convening Authority approval of the final discharge.  

8.  The applicant provided a Chapter Rights and Benefits Information, Defending Those Who Defend America fact sheet for those applying for an upgrade of their discharge/dismissal under the ADRB.  The applicant states that a Soldier who was involuntarily separated with an honorable discharge, and has a minimum of six years service, may be eligible for full separation pay.  



9.  The facts sheet identified under the Benefits upon Separation section shows that benefits accorded administratively discharged Soldiers vary based upon (1) the basis for discharge; (2) the character of service; and (3) the length of service and that the prerequisites frequently change.  The facts sheet shows entitlement to full separation pay or half separation pay for involuntary discharges, payment for accrued leave, Montgomery GI Bill Benefits for education, Household Goods Shipment entitlements, and benefits for involuntary separations based on the assigned re-enlistment code. 

10.  Title 10 of the United States Code, Section 1169 (Regular Enlisted Members-Limitations of Discharge) states, in pertinent part, that no regular enlisted member of an Armed Force may be discharged before his term of service expires, except as prescribed by the Secretary concerned; by sentence of a general or special court-martial; or as otherwise provided for by law.  

11.  Army Regulation 635-200 provides the policies and procedures for the administrative separation of enlisted Soldiers of the United States Army.  Paragraph 1-19c contains guidance on when a Special Court-Martial Convening Authority may approve discharges.  It states, in pertinent part, that the Special Court-Martial Convening Authority is authorized to approve separations under the provisions of chapter 14 when discharge UOTHC is not warranted and the notification procedure is used.  

12.  Paragraph 2-5 contains guidance on a waiver of the right to a hearing before an administrative separation board.  It states, in pertinent part, that when a soldier waives his/her right to a hearing before an administrative board and the separation authority approves the waiver, the case will be processed without convening a board.  However, the separation authority will be the same as if the board was held.  A Soldier may wish to waive his/her right to a hearing before an administrative separation board contingent upon receiving a characterization of service or description of separation more favorable than the least favorable characterization authorized for the separation reason set forth in the notice of separation action. 

13.  Department of Defense Instruction 1332.28 (Discharge Review Board Procedures and Standards) issues uniform procedures and standards for the review of discharges.  Enclosure 4 outlines discharge review standards and Paragraph E4-2. contains guidance on the propriety of discharges.  It states, in pertinent part, that a discharge shall be deemed proper unless, in the course of discharge review, it is determined that an error of fact, law, procedure, or discretion exists associated with the discharge at the time of issuance; and that the rights of the applicant were substantially prejudiced (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made).  

14.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  The regulation states that RE–3 applies to persons not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable. 

15.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) (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 "JKQ" is the appropriate code to assign to Soldiers who separated under the provisions of Chapter 14-12c, Army Regulation 635-200, for misconduct (Serious Offense).  The SPD/RE Code Cross Reference Table included in the regulation stipulates that the RE code assignment will be based on the Department of the Army directive authorizing separation.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be provided any pay and allowances due based on the action of the ADRB, which upgraded his discharge to fully honorable and changed the authority and reason to paragraph 5-3, Army Regulation 635-200, Secretarial Authority.  However, there is insufficient merit to this claim. 

2.  Although there was an error of fact, law, procedure, or discretion made in the processing of the applicant's discharge in that the separation was not approved by the General Court-Martial Convening Authority; based on the applicant's extensive record of misconduct and given the regulation grants the Special Court-Martial Convening Authority the ability to approve separations under chapter 14 when a discharge under other than honorable conditions is not warranted, it is concluded there is not substantial doubt that the discharge would have remained the same had the error not been made.  Therefore, notwithstanding the ADRB action on this case, there is insufficient basis to grant the requested relief in this case.  

3.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LDS___  __DLL___  _ECP ___  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.





___Linda D. Simmons___
       CHAIRPERSON



INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.