IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100007127 


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, amendment of his discharge orders to show he is entitled to payment of separation pay in recognition of his 18 years and 19 days of honorable active duty service. 

2.  He essentially states he was wrongfully discharged under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel) without his consent.  He continues that the Army Discharge Review Board (ADRB) determined his discharge was improper and upgraded his discharge under other than honorable conditions to fully honorable.

3.  He provides copies of:

* four memoranda
* an email message
* his ADRB proceedings
* two DD Forms 214 (Certificate of Release of Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show on 1 June 2004, after having served in the Regular Army for close to 18 years and attaining the rank and pay grade of sergeant first class (SFC)/E-7, charges were preferred against him for the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

2.  On 17 August 2004, the proper separation authority disapproved his request for a chapter 10 discharge.  However, on 24 August 2004, the separation authority reversed his decision and approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he be reduced to the lowest enlisted rank and issued a discharge under other than honorable conditions.  

3.  Headquarters, 3rd Infantry Division and Fort Stewart Georgia, Orders 253-0006, dated 9 September 2004, reassigned him to the U.S. Army transition point for transition processing with a discharge date of 15 September 2004.  On 15 September 2004, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time shows he completed 18 years and 19 days of creditable service.

4.  On 5 February 2007, the ADRB determined his discharge was improper, as the separation authority had disapproved his request for discharge in lieu of trial by court-martial on 17 August 2004, and then approved it on 24 August 2007.  The ADRB based their decision on the doctrine of administrative finality which states that once an official makes a decision and it is announced or published, he [or she] cannot change the decision without specific legal authority or an authorized request to reconsider.

5.  As a result, the ADRB upgraded his characterization of service to fully honorable, changed his narrative reason for separation to Secretarial Authority, and restored his rank and pay grade of SFC/E-7.  However, the ADRB's action did not entail a change in his reentry eligibility (RE) code of 4, which does not permit him to reenter the service.

6.  Paragraph 3.1 of Department of Defense Instruction (DODI) Number 1332.29, dated 20 June 1991, in pertinent part, states full payment of non-disability separation pay is authorized to members of the Regular and Reserve components involuntarily separated from active duty who meet each of the following four conditions:

	a.  subparagraph 3.1.1.1:  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.

	b.  subparagraph 3.1.2:  The service member's separation is characterized as "Honorable."

	c.  subparagraph 3.1.3:  The service member is fully qualified for retention, but is being involuntarily separated by the military service concerned through either the denial of reenlistment or the denial of continuation on active duty.

	d.  subparagraph 3.1.3:  The service member has 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 period of not less than 3 years following separation from active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge orders should be amended to show he is entitled payment of separation pay in recognition of his 18 years and 19 days of honorable active duty service was carefully considered and determined to lack merit.

2.  Evidence clearly shows charges were preferred against him for the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

3.  Evidence shows that due to a technicality, he was improperly discharged in accordance with the doctrine of administrative finality, and the ADRB rectified this error by restoring his rank/pay grade and upgrading his discharge and narrative reason for separation.  However, the ADRB's action did not entail a change in his RE code of 4, which does not permit him to reenter the service.

4.  The ADRB's action also did not mitigate the fact that he voluntarily initiated his separation action in order to avoid a trial by court-martial which may have resulted in a felony conviction.  Therefore, he was not suitable for retention and as such, does not meet the criteria prescribed by (DODI) Number 1332.29 for receipt of full separation pay.

5.  In view of the foregoing, it would be inappropriate in this case to amend his discharge orders to show he is entitled payment of separation pay.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  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.



      _______ _   _X______   ___
       	   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)                                         AR20100007127





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)