IN THE CASE OF:	  

		BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130008582 


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 correction of his military records to show he was retired due to length of service.

2.  The applicant states he was denied retirement after having a retirement approved twice.

	a.  He argues that he had 21 years of service before his conviction and sentence to prison.  He believes he was denied a retirement because of the nature of his offense and due to no other reason.  At best this was prejudicial.

	b.  He also contends the Army erred when his commander at Fort Hood, TX, requested that he be administratively discharged due to misconduct.  Because he had over 18 years of service, such a request had to be initiated by Headquarters, Department of the Army.

	c.  He makes the same argument concerning the administrative separation action for the convenience of the government.  He believes that the error in both actions makes his ultimate discharge unlawful.

	d.  Additionally, he argues that the regulation states "MAY" upon request be retired.  This simple word gave the Secretary of the Army authority to deny retirement of a veteran with 21 years of service.  He requests that his discharge be reviewed and corrected if possible with back pay.


3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  On 26 June 1986, the applicant enlisted in the Regular Army.  He completed his initial training and served through a series of reenlistments.  On 1 September 2001, he was promoted to sergeant first class, pay grade E-7.

2.  On 7 October 2004, the Director of Military Personnel Policy, Army G1, approved the recommendation of the Army Enlisted Standby Advisory Board to remove the applicant's name from the Memorandum, U.S. Army Human Resources Command (HRC), dated 25 March 2004, Subject: Promotion List to Master Sergeant.

3.  On 8 April 2005, the applicant accepted nonjudicial punishment for unlawfully grabbing a first lieutenant by her battle duty uniform top and brown t-shirt with his hands and communicating a threat that he would kill her.

4.  Orders 306-0108, Fort Hood, TX, dated 2 November 2005, announced the applicant's retirement effective 30 June 2006, based on 20 years and 5 days of active service.  On 18 April 2006, Orders 108-0119 rescinded these retirement orders.

5.  Orders 108-120, Fort Hood, TX, dated 18 April 2006, announced the applicant's retirement effective 30 November 2007, based on 21 years, 5 months, and 5 days of active service.  Paragraph 2, Orders 333-0128, Fort Hood, TX, dated 29 November 2007, rescinded these retirement orders.

6.  On 2 February 2007, the 19th District Court, McLennan County, TX, found the applicant guilty of aggravated sexual assault (three counts).  He was sentenced to 15 years in confinement on each count, with the sentence for count two to begin when an earlier judgment and sentence that occurred in 2006 had ceased.

7.  A DA Form 4187 (Personnel Action) dated 6 February 2007 reports that the applicant's status changed on 2 February 2007 from present for duty to confined by civilian authorities.

8.  Orders 333-0128, Fort Hood, TX, dated 29 November 2007, announced the applicant's retirement effective 29 February 2008, based on 21 years, 8 months, and 5 days of active service.


9.  On 8 February 2008, the 3rd Signal Brigade Deputy Commander, Fort Hood, TX, notified the Director of Human Resources, Fort Hood, TX that the applicant had been convicted and sentenced in a civilian court and that his command was preparing paperwork for an administrative separation.

10.  On 8 February 2008, the Transition Center, Fort Hood, TX, sent a memorandum to HRC stating that the applicant's unit requested to withdraw the applicant's approved retirement due to his conviction and sentence to 30 years in confinement.

11.  On 11 February 2008, HRC approved the request to withdraw the applicant's approved retirement.  HRC further directed that the Retirement Services Officer take action to revoke the retirement orders and initiate the appropriate transactions.

12.  Orders 042-0105, Fort Hood, TX, dated 11 February 2008, revoked Orders 333-0128, Fort Hood, TX, dated 29 November 2007.

13.  On 12 February 2008, the applicant's commander notified him of his intention to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14 due to conviction by civilian court.  On 13 February 2008, the applicant acknowledged the notification and stated he had been advised of his right to consult with counsel prior to making and election of rights.

14.  On 13 February 2008, the applicant stated he had been advised by counsel.  He requested consideration of his case by an administrative separation board and to appear before that board.  He elected not to submit statements in his own behalf.  He requested consulting counsel and representation by military counsel.

15.  On 25 February 2008, the brigade commander recommended approval of the separation action and directed that the applicant be issued an under other than honorable conditions discharge.

16.  On 5 March 2008, the Standing Enlisted Separation Board, Fort Hood, TX was notified to convene to consider whether the applicant should be separated from the Army and, if so, the appropriate characterization of service.  The board action is not available.

17.  On 16 July 2008, the Deputy Staff Judge Advocate (SJA), Fort Hood, TX, provided a legal review concerning the findings and recommendations of the administrative separation board that convened on 21 May 2008 to consider whether the applicant should be separated.
	a.  The Deputy SJA recommended that the separation authority take no action concerning the findings and recommendation of the  administrative separation board.  Instead, he recommended that the separation authority consider initiating a convenience of the government separation under the provisions of Army Regulation 635-200, paragraph 5-3.

	b.  The Deputy SJA stated that if the separation authority believed the applicant should be separated from the service prior to the end of his term of enlistment, then he may forward a request to the Secretary of the Army under the provisions of Army Regulation 635-200, paragraph 2-6(e) to exercise his plenary separation authority under paragraph 5-3.

	c.  The Deputy SJA further stated that early separation of the applicant was clearly in the best interest of the Army.  His conviction and sentence to 30 years confinement rendered him of no use to the Army.  His conviction of aggravated sexual assault discredited the Army.

18.  On 16 July 2008, the applicant was notified by the Commanding General, III Corps and Fort Hood, TX, that he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 5-3 for the convenience of the government.  The basis for this action was his conviction and sentence on 
2 February 2007, as discussed above.  The commander stated that he was recommending a general, under honorable conditions characterization of service.  He was also informed that the separation authority in his case was the Secretary of the Army.  The applicant acknowledged this notification on 5 August 2008.

19.  In a memorandum to HRC, dated 20 November 2008, the Commander, III Corps and Fort Hood, TX, recommended the applicant be discharged for the convenience of the government.  He cited Army Regulation 635-200, chapter 5, section 1, paragraph 5-3a, Secretarial Plenary Authority.  He also stated that the administrative separation board, convened under the authority Army Regulation 635-200, chapter 14, had recommended the applicant be retired from active duty.  The commander based his recommendation for discharge on the applicant's conviction for three counts of aggravated sexual assault on a minor and his 
30-year prison sentence.

20.  In a memorandum dated 12 March 2009, the Director of Enlisted Personnel, HRC informed the Assistant Secretary of the Army, Manpower and Reserve Affairs, that the applicant was an enlisted Soldier with over 20 years of service who had been taken into custody by civilian authorities for sexual assault of a minor.  He had been in civilian confinement since 7 February 2007.  He had been found guilty and sentenced to 30 years in civilian confinement.  Further, it was recommended that if involuntary separation was approved he should not be authorized separation pay, he should not be transferred to the Individual Ready Reserve, and he should be given a separation designator code of JFF and a reentry eligibility code of 4.

21.  On 11 July 2011, the Assistant Secretary of the Army, Manpower and Reserve Affairs, directed that the applicant be discharged from the Army under the provisions of Army Regulation 635-200, paragraph 5-3, with a general characterization of service.

22.  On 2 August 2011, the applicant was accordingly discharged.  He had completed 20 years, 7 months, and 6 days of creditable active duty service.  His DD Form 214 shows he was separated by reason of Secretarial Authority, under the provisions of Army Regulation 635-200, paragraph 5-3, with a general discharge.

23.  On 28 December 2012, the Army Discharge Review Board (ADRB) considered the applicant's request to upgrade his discharge.  The ADRB determined that his discharge was both proper and equitable and voted to deny relief.

24.  Army Regulation 635-200 (Personnel Separations):

	a.  Paragraph 2-6(e) states when a board of officers has recommended retention and the separation authority believes that discharge is warranted and in the best interest of the Army, a request for discharge for the convenience of the Government per paragraph 5–3 may be forwarded to Headquarters, Department of the Army.

	b.  Paragraph 5-3 pertains to Secretarial plenary authority.  Separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army.  Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee.  Secretarial separation authority is normally exercised on a case-by-case basis.

25.  Army Regulation 635-200, chapter 12 (Retirement for Length of Service) provides:

	a.  Soldiers of the Regular Army must be on active duty when they retire.

	b.  For Regular Army Soldiers, the date of their retirement is the first day of the month following the month in which they are released from active duty.

	c.  Soldiers who have completed 20 but less than 30 years of active Federal service in the United States Armed Forces and have completed all required service obligations are eligible for but not entitled to retire upon request.

	d.  Soldiers who are under suspension of favorable personnel action are not precluded from submitting applications for retirement.  Such requests will be considered on a case-by-case basis by the local retirement authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was retired due to length of service because his chain of command had initiated a recommendation that he be separated under Secretarial Authority.  The applicant believes that such action had to originate within the Secretary of the Army's office.

2.  The available evidence of record shows that on 2 February 2007, the applicant was convicted in a civilian court for three counts of aggravated sexual assault on a minor.  He was sentenced to 30 years confinement.

3.  The evidence further shows that the applicant's commander attempted to separate him under the provisions of Army Regulation 635-200, chapter 14 for misconduct, but was advised by the Deputy SJA to consider submitting the case to Headquarters, Department of the Army for consideration of a separation under Secretarial Authority.

4.  On 11 July 2011, the Assistant Secretary of the Army, Manpower and Reserve Affairs, directed that the applicant be separated from the Army under the provisions of Army Regulation 635-200, paragraph 5-3, with a general characterization of service.

5.  The available evidence clearly shows the applicant had completed more than 20 years of creditable active service prior to his being involuntarily separated under the provisions of Secretarial Authority.  The applicant's contention that such action was inappropriate is without merit.  The Secretary of the Army’s office is the approval authority for such separations; the separation action is not initiated there.  The commander properly submitted paperwork to Headquarters, Department of the Army for consideration to separate the applicant.  Commanders are expected to provide their thoughts and recommendations on such actions.  Such cases are evaluated on their own merits.
6.  Soldiers who have completed 20 but less than 30 years of active Federal service in the United States Armed Forces and have completed all required service obligations are eligible for but not entitled to retire upon request.  In the applicant's case, it is apparent the decision was made that his case did not merit retirement.

7.  There is no apparent error or injustice in this case.

8.  In view of the above, the applicant's request should be denied.

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)                                         AR20130008582





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ABCMR Record of Proceedings (cont)                                         AR20130008582



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