IN THE CASE OF:	  

		BOARD DATE:	  23 October 2014

		DOCKET NUMBER:  AR20130021749 


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 full severance pay and transfer to the U.S. Army Reserve (USAR).

2.  The applicant states, in effect, he deserves full severance pay based on 20 years of service (instead of 10 years) and that he should be allowed to enter the USAR due to the fact that he was "grandfathered" and has “19 years and six month [sic]” of USAR service. 

   a.  He states, in effect, that his last three Noncommissioned Officer Evaluation Reports (NCOERs) were unsatisfactory.  His unit was unfair to him because he was (formerly) a reservist and they never gave him a chance to develop professionally.  In addition, many of the senior NCOs who wrote his NCOERs were doing even more evil than he but their NCOERs were perfect.  He was given bad NCOERs because he was not a part of the unit's clique and because of his strong accent.  He was not allowed to continue his military career due to racist and unethical acts involving senior-ranking Soldiers who were being very unethical in every way toward him.
   
   b.  He further states that he should have been allowed to complete 20 years of service based on "sanctuary" given that he had more than 19 years of service at his expiration term of service (ETS) date.
   
   c.  He states he also attempted enter the USAR by finding a unit that would accept him with his last three NCOERs and he got an acceptance letter from the unit.  However, he was then told by Master Sergeant (MSG) TL that the unit did not want him and he was denied access to the USAR.  He should get some rewards for the many years of hard work he gave the U.S. Army.

3.  The applicant provides: 

* Personal statement
* Directorate for the Human Resources, Military Personnel Division, Joint Base Lewis-McChord Orders 067-0012
* Enlisted Record Brief (ERB)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 May 2013
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show, on 13 May 2008, with prior service, he enlisted in the Regular Army (RA), in the rank of staff sergeant (SSG)/E-6.

2.  His records contain three NCOERs for the rating periods covered from 20 August 2009 through 7 March 2011, in the rank of SSG, which show the following:

   a.  For the evaluation period 20 August 2009 through 28 February 2010, his rater marked "No" for duty, respect/equal opportunity/equal employment opportunity, honor, and integrity.  His rater indicated he failed to meet Army standards during training that was a critical military occupational specialty requirement, continuously disrespected senior leadership in the unit, and conducted his daily duties in an unprofessional manner.  He was assigned a marginal overall rating.  His senior rater gave him a poor (5 of 5) overall performance rating and fair (4 of 5) overall potential rating.
   
   b.  For the evaluation period 1 March 2010 through 31 May 2010, his rater marked "No" for duty and stated that he avoided complying with orders and required constant supervision.  His rater indicated that due to his poor standards he had a negligent discharge of his own weapon at a rifle range, performed platoon sergeant duties on a temporary basis with substandard results, failed an online course necessary for performance of his duties, and assigned him a marginal overall rating.  His senior rater gave him a poor (5 of 5) overall performance rating and fair (4 of 5) overall potential rating.  Both the rater and senior rater were different from the previous NCOER.
   
   c.  For the evaluation period 1 June 2010 through 7 March 2011, his rater gave him a marginal overall rating.  His senior rater gave him a fair (4 of 5) overall performance rating and fair (4 of 5) overall potential rating.  Both the rater and senior rater were different from either of the previous two NCOERs.
   
   d.  There is no evidence he appealed any of these NCOERs.

3.  His record contains an ERB, dated 23 April 2013, which shows an Immediate Reenlistment Eligibility/Prohibition (ERUP) Code (now known as Immediate Reenlistment Prohibition (IMREPR) Code) of "9W" (Not Eligible Due to SSG NCOER/NCO Education System (NCOES) Eligibility Requirements) in Section III - Service Data.

4.  Directorate of Human Resources, Military Personnel Division, Joint Base Lewis-McChord Orders 067-0012, dated 8 March 2013, show the applicant was to be discharged on 20 May 2013.  These orders also show:

   a.  He was entitled to one-half separation pay in accordance with Title 10, U.S. Code, Section 1174 (10 USC 1174).
   
   b.  He was to complete a DA Form 7154-R (Agreement to Join the Ready Reserve) signed by his career counselor.  It is unknown whether this form was completed.

5.  His DD Form 214 for the period ending 20 May 2013 shows he was honorably discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4.  This form shows:

* he was entitled to half involuntary separation pay in the amount of $22,634.34
* at the time of his discharge he held the rank of SSG
* he completed 5 years and 8 days of net active service this period
* he completed 5 years, 3 months, and 24 days of prior active service
* he completed 10 years, 3 months, and 17 days of total prior inactive service
* his narrative reason for separation was "non-retention on active duty"
* he was assigned a Separation Program Designator (SPD) Code of JGH (involuntary discharge – non-retention on active duty)
* he was assigned a reentry code of "3"



6.  An ARPC Form 249-E, dated 8 July 2013, shows he was credited with 19 years and 6 days of service creditable toward non-regular retired pay.

7.  10 USC 1174 authorizes separation pay to a regular enlisted Soldier who has 6 or more but less than 20 years of active service immediately before his discharge and who is discharged involuntarily or as the result of the denial of his reenlistment.  

8.  10 USC 1176(a) states a regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within 2 years of qualifying for retirement under section 3914 or 8914 of this title shall be retained on active duty until the member is qualified for retirement unless the member is sooner retired or discharged under any other provision of law.

9.  10 USC 1176(b) states, effective 23 October 1992, a Reserve enlisted member serving in an active status who is selected to be involuntarily separated (other than for physical disability or for cause), or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause), and who on the date on which the member is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 20 years of service computed under section 12732 of this title, may not be discharged, denied reenlistment, or transferred from an active status without the member's consent.

10.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the preparation and submission of the NCOER's for corporals through command sergeants major.  

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army NCO corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms and counseling forms.  The relative experience of the rated NCO, the efforts made by the rated NCO, and the results that could be reasonably expected given the time and resources available will be considered.

	b.  This regulation states that evaluation reports accepted for inclusion in the Soldier’s official record are presumed to be administratively correct, have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.
11.  Army Regulation 635-200, effective June 2005, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance.  This regulation provides the authority for separation of Soldiers upon ETS or fulfillment of active duty obligation.

12.  Army Regulation 601-210 (Active and Reserve Component (RC) Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  An RE code of "3" applies to persons who have a waivable disqualification.  Chapter 4 states recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are responsible for processing waivers.  

13.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code JGH is to be used for RA Soldiers ineligible for, barred from, or otherwise denied reenlistment who are separated on completion of enlistment.

14.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and RC Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code JGH has a corresponding RE code of "3."  

15.  Military Personnel Message Number 13-339, issued 20 November 2013 shows that IMREPR code "9W" denotes "Not Eligible due to SSG NCOER/ NCOES Eligibility Requirements."

16.  Retention Policy Message 14-03 stated that career counselors would ensure IMREPR code "9W" transaction is reported in RETAIN (Reenlistment, Reclassification and Assignment System).  Bases for this code include:
 
* Soldiers who receive an NCOER with an entry of “No” in Part IV (Army Values/Attributes/Skills/Actions) 
* Soldiers who receive an NCOER with an entry of “4-Fair” or “5-Poor” in Part V (Overall Performance and Potential) 

17.  Chapter 35 of the Department of Defense Financial Management Regulation, Volume 7, provides for full or half payment of non-disability separation pay:

	a.  Effective 20 June 1991, full payment of non-disability separation pay is authorized to service members of the RA and RC, in pertinent part, who have been involuntarily separated from active duty and have met each of the following four conditions:

* the member is on active duty and has completed at least 6 years but less than 20 years of active service
* the member’s separation must be characterized as honorable
* the member who is separated involuntarily through the denial of reenlistment must be fully qualified for retention but denied reenlistment
* the member must have entered into a written agreement to serve in the Ready Reserve for a minimum period of 3 years following the separation from active duty  

	b.  Effective 20 June 1991, half payment of non-disability separation pay is authorized to service members of the RA and RC, in pertinent part, who involuntarily have separated from active duty and have met each of the following four conditions:

* the member is on active duty and has completed at least 6 years but less than 20 years of active service
* the member’s separation must be characterized as honorable or general
* the member is not fully qualified for retention and must be separated involuntarily through the denial of reenlistment at expiration of service obligation 
* the member must have entered into a written agreement to serve in the Ready Reserve for a minimum period of 3 years following the separation from active duty (member who enters into this written agreement and is not qualified for enlistment in the Ready Reserve need not be enlisted to be considered to have met this condition of eligibility for separation pay) 

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding the three "bad" NCOERs in question were carefully considered.  However, he has not provided independent evidence to support his allegations.  The three NCOERs in question show he was rated and senior rated by different rating officials during each evaluation period in question.  There is no evidence he appealed any of these evaluation reports.  The evaluation reports were accepted for inclusion in his official record.  Therefore, it must be presumed these NCOERs were administratively correct, were prepared by the properly designated rating officials, and represented the considered opinions and objective judgment of the rating officials at the time of preparation.  

2.  IMREPR Codes are used to identify a Soldier with a disqualification for reenlistment.  Evidence indicates he was properly assigned an IMREPR Code of "9W" as a result of receiving a "No" block or a "4" or worse on one or more of his NCOERs in question.  There is no evidence that these NCOERs were flawed in any manner.  As such, available evidence and an IMREPR Code of "9W" entry on the applicant’s confirm he was not eligible for reenlistment.

3.  He has provided no evidence to support his contention that an Army career counselor and a MSG kept him from being transferred to the Ready Reserve.  Evidence shows he was properly assigned a reentry code of "3" based on his reason for separation and SPD code.  He would only have been eligible to enlist in the Ready Reserve with a reentry code waiver.  There is no evidence he received such a waiver.  Therefore, he would not have been eligible to serve in the Ready Reserve for a minimum period of 3 years following his separation.

4.  Based on his receiving half payment for separation pay, it does appear that he may have completed an agreement to serve in the Ready Reserve.  Though it appears he was not accepted into the Ready Reserve, he would have met this part of the eligibility criteria.  However, given that he was not fully qualified for retention, it appears he was properly granted half payment of non-disability separation pay.  As such, there appears to be no basis to support granting him full payment of non-disability separation pay.

5.  He had only 10 years of creditable active service; therefore he did not qualify for the "sanctuary" provisions of 10 USC 1176(a).  He was not a member of the RC at the time of his release from AD; therefore, he did not qualify for the "sanctuary" provisions of 10 USC 1176b for enlisted RC Soldiers in an active status. 

6.  It is unknown what he meant by "grandfathered."  The applicant is advised that the Board is not an investigative body and it begins its review of every case with the presumption that what the Army did is correct.  The burden of proving otherwise rests with the applicant.  However, there is no evidence of error or injustice in his case.  Therefore, there appears to be no basis for granting the applicant his requested relief.

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)                                         AR20130021749



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130021749



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1