IN THE CASE OF:	  

		BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130010360 


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 discharge orders to show he was "Authorized full separation pay" instead of "Not authorized full separation pay."

2.  The applicant states, in effect:

	a.  He appeared before a reclassification medical board to switch jobs in 2010 due to allergic reactions.  He was approved by the members of the board to reclassify and he had to choose 5 military occupational specialties (MOS).  He chose his MOS's which he submitted to his career counselor.  There was one intelligence MOS for which he met all requirements, but his prejudiced commander recommended that he work at the Dining Facility (DFAC).  He felt offended by that statement and he told him no, that is not what he wanted to do.  A few days or a week later, his career counselor called him in his office and said that he (the applicant) was chosen to reclassify to work at the DFAC.  He told the career counselor that is not what he wanted to do.  He then asked the career counselor to let him know if something else becomes available.  He then enrolled in the Career and Alumni Program (ACAP). 

	b.  With his expiration term of service (ETS) date in June 2011, the career counselor explained to him that there was nothing he could do and that he (the applicant) was already enrolled to go to school in March-April 2011.  Between January and March 2011, there was a Military Personnel (MILPER) Message, Subject: Change to Retention Control Point (RCP) for Enlisted Soldiers Serving in the Regular Army (RA) or Under Active Guard Reserve (AGR) Title 10 Programs, briefed to all career counselors that all RCP dates were going to be effective 1 June 2011 (his ETS date was 19 June 2011).  This was 3 to 4 months away from his ETS date.

	c.  He was lied to, tricked and forced [to physically] to sign a Declination of Continued Service Statement (DCSS), during after duty hours in the absence of the career counselor and in the presence of the first sergeant (1SG), who told him that his leave would not be approved if he did not sign it.  The 1SG told him it was imperative that he signed the DCSS because his class had to be cancelled and it could not be done without the DCSS.  When he signed the DCSS there was already a date pre-typed on the form from November 2010.  This was now 2011 and he asked why the DCSS stated November 2010; the 1SG told him it did not matter.  But, after being briefed by the transition officer, he said "why would he make me sign a DCSS after he was briefed on the new RCP dates effective 1 June 2011."  He also made a bold statement and said "He screwed you."  

	d.  Meanwhile, his discharge orders that were sent to the unit and handed to him already said "Full Separation Authorized."  On his last day of final outprocessing, he was given new orders saying "Full Separation Not Authorized." He was devastated, after serving 15 years in the U.S. Army, that his orders were changed.  He exhausted all means to get this issue resolved but everyone told him it is too late, there was nothing that he could do and he should not waste his time.  Justice has to be served here because if his case is properly investigated the conclusion will be (1) why should he sign a DCSS within 3 to 4 months of his ETS date?; (2) if the DCSS had a pre-typed date of November 2010, why was it submitted in March or April 2011?; (3) first his unit received orders which showed he was "Authorized full separation pay" and after that the DCSS issue came up; (4) if he was scheduled for school to reclassify in March/April 2011, why was the DCSS used as an excuse; and (5) if the career counselor was briefed about the MILPER Message prior to him (the applicant) signing the DCSS that should be enough proof. 

3.  The applicant provides:

* DA Form 4991-R (DCSS)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 133-0003, dated 13 May 2011
* Orders 165-0001, dated 14 June 2011
* Orders 165-0002, dated 14 June 2011
* MILPER Message 11-096, dated 25 March 2011



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the RA on 21 June 1996 and he held military occupational specialty 77F (now 92F) (Petroleum Supply Specialist).  
2.  He served through multiple reenlistments in a variety of stateside or overseas assignments and he was promoted to sergeant (SGT) on 1 January 2000.  He appears to have served in Germany from January 2000 through June 2011.

3.  On 12 December 2005, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for misconduct (failure to repair, being absent without leave, disobeying orders, and dereliction of duties).  His punishment consisted of a reduction to pay grade E-4, a forfeiture of pay, and extra duty and restriction. 

4.  He was reassigned in Germany to the 4th Battalion, 7th Air Defense Artillery, in or around April 2006.  He was promoted again to SGT on 1 March 2007.  His last reenlistment was on 17 October 2007 for an unknown term of service with an ETS date of 19 June 2011.  

5.  On an unknown date in 2010 or 2011, he was placed on assignment from Germany to Fort Bragg, NC, with a reporting date on or about 31 July 2011.  However, it appears he declined the assignment and signed a DCSS.  The DCSS was initiated by his unit's Retention Office on 5 November 2010 and shows:

* he incurred a service-remaining requirement as a result of his assignment to Fort Bragg, NC
* his ETS date was 19 June 2011 and he had been advised that in order to comply with the operational commitment he would have to have a minimum of 13 months remaining to ETS as of 31 July 2011
* he had been advised that he had 45 days from the date of this notification to extend, reenlist, or execute this statement
* he would not be eligible for separation pay 

6.  The DCSS, signed by the applicant and his 1SG, states:  "I hereby acknowledge that I have been counseled by the above career counselor concerning action taken by me to satisfy a length-of-service requirement incident to an operational commitment, and regarding my refusal to extend my enlistment or reenlist to comply with the commitment.  I understand the effects my refusal will have on my Army career and on any future decision I might make concerning reenlistment or enlistment after separation."  
7.  On 11 May 2011, the Installation Management Command, Kaiserslautern Transition Center, Germany, published Orders 133-0003 reassigning him to the U.S. Army Transition Point for transition processing with a date of discharge of 19 June 2011.  The orders stated in the Additional Instructions "Soldier is entitled to full separation pay in accordance with Title 10, U.S. Code, 1174."  

8.  On 14 June 2011, the Installation Management Command, Kaiserslautern Transition Center, Germany, published two sets of orders:  

	a.  Orders 165-0001 rescinding Orders 133-0003, issued on 13 May 2011. 

	b.  Orders 165-0002 reassigning him to the U.S. Army Transition Point for transition processing with a date of discharge as 19 June 2011.  These orders do not contain in the Additional Instructions any entry pertaining to separation pay. 

9.  On 19 June 2011, he was honorably discharged in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separation), chapter 4, by reason of completion of his required active service.  His DD Form 214 shows he completed 14 years, 11 months, and 29 days of active service.  His DD Form 214 also shows he was assigned a Separation Code of "KBK" and the entry "Not eligible for separation pay." 

10.  MILPER Message 11-096, dated 25 March 2011, provided clarification and guidance on the implementation of the RCP for enlisted Soldiers serving on active duty across all Army components.  It states effective 1 June 2011 the RCP for a SGT/E-5 is 13 years and for a promotable SGT/E-5 is 15 years.  Soldiers not serving on an indefinite reenlistment who reach their RCP (as noted in this message) prior to their ETS are authorized to serve until their current ETS.  This includes Soldiers who have been reduced in grade or removed from a promotion list, either voluntary or involuntary.  Soldiers may not be separated because they exceed their RCP.  

11.  Army Regulation 601-280 (Army Retention Program) prescribes criteria for the Army Retention Program and sets forth policies, command responsibilities for immediate reenlistment or extension of enlistment of Soldiers currently serving in the Active Army, and enlistment/transfer and assignment of Soldiers processing from the Active Army to the Reserve Components of the U.S. Army.  Chapter 4 provides for reenlistments, extensions, and DCSS.  Paragraph 4-11 (Use of the DCSS) states Soldiers, other than those in their initial term, having 4 or more years service for pay purposes at ETS, must take action to meet Service Remaining Requirements (SRR).  This action is required regardless of the SRR start or report date, to include those after the Soldier’s current ETS.  Soldiers eligible, but refusing to take action to satisfy military SRRs will be denied further service through the DA Form 4991-R.  However, there are exceptions.  The DCSS will not be used for:

* Soldiers ineligible to obtain sufficient time through reenlistment or extension of enlistment as verified by the servicing Career Counselor per chapter 3 of this regulation
* Soldiers with insufficient time and ineligible to take action to obtain sufficient time to complete an unaccompanied tour
* Soldiers within 90 days of ETS date on date of notification of assignment instructions
* Continental United States (CONUS) based Soldiers alerted for outside CONUS movement with insufficient time to complete an accompanied tour but who have sufficient time or are eligible to take action to obtain sufficient time to complete an unaccompanied tour; that is, the Soldier having enough time to complete an unaccompanied tour, but not the longer accompanied tour, will not have a DCSS
* Soldiers serving on an indefinite reenlistment do not have the option of submitting a DCSS; indefinite Soldiers who are retirement eligible may submit retirement applications in lieu of assignment, however approval is not automatic; non-retirement eligible Soldiers may submit for separation under other applicable provisions of Army Regulation 635-200

12.  Title 10, U.S. Code, section 1174(b) states (1) A regular enlisted member of an armed force who is discharged involuntarily or as the result of the denial of the reenlistment of the member and who has completed six or more, but less than 20, years of active service immediately before that discharge is entitled to separation pay computed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay; and (2) separation pay of an enlisted member shall be computed under paragraph (1) of subsection (d), except that such pay shall be computed under paragraph (2) of such subsection in the case of a member who is discharged under criteria prescribed by the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant last reenlisted on 17 October 2007 and he had an ETS date of 19 June 2011.  The available evidence shows he was placed on assignment instructions in or around late 2010 to Fort Bragg, NC, with a reporting date on or around 31 July 2011.  In order to comply with the reassignment instructions, he was required to extend or reenlist for a minimum of 13 months remaining to ETS. He chose to decline the assignment and sign a DCSS instead.  

2.  The MILPER Message announced the RCP for a non-promotable SGT/E-5 at 13 years.  However, the message also stated Soldiers not serving on an indefinite reenlistment who reach their RCP prior to their ETS are authorized to serve until their current ETS.  The applicant was allowed to serve until his ETS.  He was not involuntarily separated.  Since his separation was a voluntary action, he was not entitled to 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)                                         AR20130010360



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ABCMR Record of Proceedings (cont)                                         AR20130010360



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