IN THE CASE OF:	  

		BOARD DATE:	 10 April 2014 

		DOCKET NUMBER:  AR20130013001 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) in:

* Item 26 (Separation Code)/Separation Program Designator (SPD)) from "JGB" to "KND"
* Item 28 (Narrative Reason for Separation) from "Non-Selection,
Permanent Promotion" to "Miscellaneous, General Reasons"

2.  The applicant states he completed his active military obligations prior to being separated as a two-time non-select.  He requests that the Army Board for Correction of Military Records (ABCMR) consider changing his SPD code and narrative reason for separation so that he may to continue to serve in the Reserve component. 

3.  The applicant provides page 4/1 of his DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 9 January 2008 and his 
DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  After having had previous enlisted service, the applicant was appointed as a commissioned officer in the Regular Army in the Engineer branch on 10 July 2008.  

2.  His record contains two DA Forms 1059 (Academic Evaluation Report (AER)). The first AER, dated 19 December 2008, shows he failed to achieve course standards in the Engineer Basic Officer Leader Course (BOLC).  The second AER, dated 20 February 2009, shows he achieved course standards in Engineer BOLC.

3.  Orders Number 351-065, issued by the U.S. Army Human Resources Command (HRC) on 17 December 2009, promoted him to first lieutenant (1LT) with an effective date/date of rank of 10 January 2010.

4.  His record contains a memorandum, issued by the Chief of Officer Retirements and Separations, HRC, on 6 September 2012.  This memorandum, entitled Mandatory Separation, stated that the separation was a result of the Fiscal Year 2012, captain (CPT), Army Competitive Category Promotion Selection Board results pertaining to the applicant, effective 1 March 2013.  This separation is mandatory under Title 10, U.S. Code (USC), Section 631(a) and the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-9(d)(g), provided this is not in contravention of Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)).  The SPD code "JGB" will be used in accordance with (IAW) Army Regulation 635-5-1 (SPD Codes).  

5.  His DD Form 214 shows that on 1 March 2013 he was honorably discharged in accordance with (IAW) Army Regulation 600-8-24, paragraph 5-9 with the SPD code of "JGB" and the narrative reason for separation listed as "Non-selection, Permanent Promotion."  

6.  Title 10, USC, Section 631 (Effect of failure of selection for promotion: 1LT and lieutenants (junior grade)) states:

	a.  Each officer of the Army on the active-duty list who holds the grade of 1LT and has failed of selection for promotion to the grade of CPT for the second time, whose name is not on a list of officers recommended for promotion to the next higher grade, shall:

		(1)  Be discharged on the date requested by him and approved by the Secretary of the military department concerned, which date shall be not later than the first day of the seventh calendar month beginning after the month in which the President approves the report of the board which considered him for the second time; 

		(2)  If he is eligible for retirement under any provision of law, be retired under that law on the date requested by him and approved by the Secretary concerned, which date shall be not later than the first day of the seventh calendar 

month beginning after the month in which the President approves the report of the board which considered him for the second time; or 

		(3)  If on the date on which he is to be discharged under paragraph a(1) he is within two years of qualifying for retirement under section 3911, 6323, or 8911 of this title, be retained on active duty until he is qualified for retirement and then be retired under that section, unless he is sooner retired or discharged under another provision of law. 

	b.  The retirement or discharge of an officer pursuant to this section shall be considered to be an involuntary retirement or discharge for purposes of any other provision of law. 

	c.  An officer who is subject to discharge under subsection a(1) is not eligible for further consideration for promotion. 

	d.  For the purposes of this chapter, an officer of the Army who holds the grade of 1LT, shall be treated as having failed of selection for promotion if the Secretary of the military department concerned determines that the officer would be eligible for consideration for promotion to the next higher grade by a selection board convened under section 611(a) of this title if such a board were convened but is not fully qualified for promotion when recommending for promotion under section 624(a)(3) of this title all fully qualified officers of the officer's armed force in such grade who would be eligible for such consideration. 

7.  Army Regulation 600-8-24, paragraph 5-9 states commissioned officers on the active duty list (ADL) twice non-selected for promotion to the grade of CPT will be involuntarily released or discharged unless they are selectively continued IAW Army Regulation 600-8-29 (Officer Promotions), paragraph 1–14.  This regulation also states in:

	a.  Paragraph 5-9d that an officer may request an earlier separation date or submit a resignation, for example, to accept an appointment as a warrant officer or for continuing on AD in an enlisted status.

	b.  Paragraph 5-9g that if otherwise eligible, an officer may submit a resignation to continue a military career in an enlisted status, or a commissioned officer may submit a resignation to be appointed as a USAR warrant officer.  The resignation date will be not later than the mandatory discharge or release date.  
8.  Army Regulation 635-5-1 states that SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty.  Table 2-2 (SPD codes applicable to officer personnel) shows:

	a.  The SPD code "JGB" is the appropriate SPD code of officers who are separated IAW Army Regulation 600-8-24, paragraph 2-41 (Rules for processing involuntary release from active duty due to failure of selection for permanent Reserve promotion) or paragraph 5-9.  The narrative reason for separation associated with this SPD code is "Non-Selection, Permanent Promotion."

	b.  The SPD code "KND" is the appropriate SPD code of officers who are separated IAW Army Regulation 600-8-24, paragraph 3-5 (Unqualified Resignation).  The narrative reason for separation associated with this SPD code is "Miscellaneous/General Reasons."  This SPD code signifies voluntary or involuntary discharge for miscellaneous or general reasons but do not identify a specific existing reason for separation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his SPD code should be changed to "KND" and his narrative reason for separation to "Miscellaneous, General Reasons" so he may continue to serve in the Reserve component.

2.  The memorandum issued by HRC on 6 September 2012 shows the applicant was a two-time non-select for promotion to CPT.  Title 10, USC, and Army regulations mandate that commissioned officers on the ADL twice non-selected for promotion to the grade of CPT be involuntarily released or discharged unless they are selectively continued.  This type of discharge is mandatory and involuntary.  However, these officers do have the option to submit a resignation to continue serving as an enlisted Soldier or to be appointed as a USAR warrant officer.  However, he did not choose to continue in an enlisted status or to be appointed as a warrant officer.

3.  The SPD Code "KND" is associated with/drives the narrative reason for separation of "Miscellaneous/General Reasons" and is only used when an officer submits an unqualified resignation.  However, he did not submit an unqualified resignation and was not separated IAW Army Regulation 600-8-24, paragraph 
3-5.  Therefore, this SPD is inappropriate.

4.  His SPD code "JGB" and narrative reason for separation "Non-Selection, Permanent Promotion" accurately describe his reason for separation.  This type of separation is mandated by Title 10, USC.  As such, there is no other SPD code or narrative reason which applies to his situation.  
5.  Based on the foregoing, there is an insufficient evidentiary basis with which to grant the requested relief.

6.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for future military service or benefits. Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

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)                                         AR20130013001





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ABCMR Record of Proceedings (cont)                                         AR20130013001



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