IN THE CASE OF:
BOARD DATE: 30 September 2008
DOCKET NUMBER: AR20080013059
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, in effect, that his records be corrected to show he completed 20 years of qualifying service for Reserve retired pay and that he be paid compensation for the time he lost.
2. The applicant states that the Army Discharge Review Board (ADRB) upgraded his discharge, changed the reason for his separation, and reinstated his rank of Sergeant First Class (SFC), E-7. Afterwards, he tried to reenlist. However, they would not accept him, saying he was medically disqualified.
3. The applicant provides a self-authored statement and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 18 March 1954. After having had prior service in the U. S. Marine Corps, he enlisted in the U. S. Army Reserve on 24 January 1981. He was promoted to SFC, E-7, on 15 November 1992.
2. The applicants ADRB Case Report and Directive indicates that his commander initiated separation action under the provisions of Army Regulation 135-178, paragraph 7-11(c)(1) by reason of misconduct abuse of illegal drugs (he tested positive for cocaine on 8 July 1994). After failing to respond to the
correspondence giving him instructions about his rights, to include the right to request an administrative separation board, an unidentified separation authority directed that he be discharged with a characterization of service of under other than honorable conditions.
3. Effective 28 October 1994, the applicant was discharged from the U. S. Army Reserve, in the rank and grade of Private, E-1, with a discharge under other than honorable conditions.
4. The applicant applied to the ADRB to upgrade his discharge. He stated that he had a serious problem that made his life unmanageable and he was powerless over it. He was shown how to do drugs but no one showed him how to stop.
5. The ADRB Case Report and Directive indicated that the applicant had completed 19 years, 8 months, and 13 days of total service. The ADRB determined that the applicant was improperly discharged, citing that part of Army Regulation 135-178 that stated a Soldier having completed 18, but less than 20 years of qualifying service for retired pay would not be involuntarily discharged without the approval of the Commander, U. S. Army Reserve Personnel Center (ARPERCEN). The ADRB noted that someone other than the Commander, ARPERCEN, approved the applicants discharge. The ADRB accordingly upgraded the applicants characterization of service to fully honorable, changed the narrative reason for his separation to Secretarial Authority, and restored his rank and grade to SFC, E-7.
6. The applicants Chronological Statement of Retirement Points, dated 17 September 2008, shows that the applicant completed 17 years and 21 days of qualifying service for Reserve retired pay.
7. Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for Reserve component military service. Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. The term good years is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.
8. Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) states, in pertinent part, that a Soldier having completed 18, but fewer than 20 years of qualifying service for retired pay will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative.
DISCUSSION AND CONCLUSIONS:
1. It is acknowledged that the ADRB upgraded the applicants discharge to fully honorable and changed his narrative reason for separation from Misconduct (for abusing illegal drugs; i.e., cocaine) to Secretarial Authority.
2. However, it appears that the ADRB was misreading the applicants service record when it determined he had completed over 18 years of qualifying service for retired pay and therefore the incorrect separation authority directed his discharge.
3. The available evidence of record indicates that the applicant had completed a total of 19 years, 9 months, and 13 days of service for pay; however, his Chronological Statement of Retirement Points indicates he had completed only 17 years and 21 days of qualifying service for Reserve retired pay.
4. Unless the applicant can substantiate that he did complete over 18 years of qualifying service for Reserve retired pay (and work with the U. S. Army Human Resources Command St. Louis to update his Chronological Statement of Retirement Points), there is an insufficient equity basis upon which to compound the ADRBs error by showing he completed 20 years of qualifying service to render him eligible for that retired pay. As a senior noncommissioned officer, one of his responsibilities was to counsel junior Soldiers with problems similar to his. He therefore should have known that he could have referred himself for substance abuse rehabilitation.
5. There is insufficient evidence at this time that would warrant granting the relief requested.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____XX____ __XX______ ___XX_____ 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.
______XXXX________________
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) AR20080013059
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ABCMR Record of Proceedings (cont) AR20080013059
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