IN THE CASE OF:	   

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20130022303 


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:

The applicant defers his request, statement, and evidence to his counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant be allowed to retire from the U.S. Army Reserve (USAR).

2.  Counsel states:

	a.  The applicant should have been allowed to retire from active duty as he had active federal service in excess of 20 years.  The adverse action flag that was effective 28 March 2008 was never changed to a punishment phase flag or removed as required by the governing Army regulation (AR).  In accordance with AR 600-8-2 (Suspension of Favorable Personnel Actions (Flag)), paragraph 3a, when the Soldier's punishment phase is completed the flag will be removed.  However, because the flag was never removed, the applicant was unable to retire from the Army.

	b.  The applicant made every attempt to retire from the USAR under Title 10 status as an Active Guard Reserve (AGR) and was denied his right to do so in direct violation of Federal law.  Across two and one-half years, he submitted five separate retirement packets following an administrative board hearing in September 2010.  He received no assistance from his chain of command and was forced to initiate a Congressional inquiry on 26 January 2013 and only then did his chain of command take action.  It is the applicant's position that his command willfully neglected him by failing to provide proper counseling and evaluations, wrongfully using outdated medical information, intentionally withholding information from him, ignoring his requests for information, and violating numerous Federal statutes and ARs.  

	c.  The applicant also contends the commanding general and Secretary of the Army were briefed with the understanding the applicant was in the penalty phase of his civilian criminal proceedings when in fact his command had already been informed the penalty phase had been concluded.  The commanding general and Secretary of the Army were also briefed with outdated medical records.  The applicant was not provided with the administrative board findings until all briefings were concluded, thereby denying him time to review and appeal the findings before the final briefing to the commanding general and Secretary of the Army.  His command failed to follow proper flagging procedures in AR 600-8-2 and ignored a Congressional inquiry that remains unanswered.

	d.  The applicant is only asking for the retirement that he is entitled to under Federal law.  The applicant believes that upon review of his application and supporting documents, it will be found that an error and/or injustice occurred and appropriate action should be taken.

3.  Counsel provides the following documents pertaining to the applicant:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag))
* DA Form 4856 (Developmental Counseling Form), dated 28 March 2008
* Criminal Case Judgment court order
* Twenty-three pages titled Summary of Proceedings
* nine memoranda, dated between 20 April 2010 and 1 October 2013
* DA Form 3349 (Physical Profile), dated 9 August 2010
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) with attachments
* DA Form 7652 (Physical Disability Evaluation System (PDES) - Commander's Performance and Functional Statement)
* DA Form 5889 (Physical Evaluation Board (PEB) Referral Transmittal Document), undated
* Thirty-five pages of email, dated between 14 January and 30 October 2013
* seven pages related to a Congressional inquiry, dated between 28 January and 12 July 2013
* three orders
* a 23-page Enlisted Retirement Request packet, dated 1 September 2010 
* a 27-page Enlisted Retirement Request packet, dated 10 December 2012

CONSIDERATION OF EVIDENCE:

1.  Having had prior active and Reserve service, the applicant entered active duty on 7 January 2001 as a member of the USAR in an AGR status.  He attained the rank/grade of sergeant first class (SFC)/E-7 on 1 June 2002.  He was assigned to Headquarters and Headquarters Company (HHC), 81st Regional Reserve Command (RRC), Nashville, TN, as an Army Reserve Career Counselor.

2.  Counsel provides a DA Form 268, dated 28 March 2008, issued by the Commander, HHC, 81st RRC, wherein the applicant was flagged on that date due to pending adverse action.  This flag is not filed in the applicant's official military personnel file (OMPF).

3.  He was subsequently assigned to Region 4, Support Element Army Reserve Careers Division (ARCD), Fort Jackson, SC.

4.  On 21 August 2008, the USAR issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  This memorandum notified him that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.  

5.  Counsel provides a United States District Court, Northern District of Georgia, Atlanta Division Judgment in a Criminal Case, dated 31 March 2010, wherein it shows the applicant was found guilty of one count of theft of Government property.  He was sentenced to 3 years probation, 6 months of home confinement detention program, and ordered to make restitution in the amount of $10,187 to the Department of Health and Human Services, Atlanta, GA.

6.  On 20 April 2010, the Commander, ARCD, Fort McPherson, GA, notified the applicant of his intent to initiate separation action against him under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-5, for misconduct - conviction by a civil court.  The commander stated he was recommending he receive an under other than honorable discharge and of the procedures and rights that were available to him.  He also stated the applicant would have a hearing before an administrative board and if he had completed 20 or more years of active service creditable toward retirement, he would be given the opportunity of applying for retirement.

7.  On 22 April 2010, he acknowledged receipt of the commander's notification.  On 23 April 2010, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the type of discharge he could receive, its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He requested to appear before an administrative separation board.

8.  On 1 September 2010, an administrative board convened to consider the applicant's separation action.  The summary of proceedings, in part, shows:

   a.  Special Agent (SA) JPH, Federal Bureau of Investigation (FBI), Atlanta, Division, stated he had been an FBI agent over eight years and he first met the applicant on 15 October 2008 to interview him as a subject of a government theft case which involved several Army Soldiers who were acquiring equipment, mostly computers, from multiple Federal agencies through fraud.  The applicant was one of the main subjects who had taken over $1,000,000 (one million dollars), acquisition cost, of equipment from the Center for Disease Control (CDC) in Atlanta (emphasis added). 
   
   b.  SA JPH further stated the applicant had represented he was from the Army and used his military identification card to obtain the equipment.  The applicant had stated he did not think he sold more than $40,000 worth of CDC computers but was not initially forthcoming.  At one point, the applicant mentioned he had sold over 25 pieces of equipment on eBay when in the first interview he stated he may have sold two computers on eBay.  He had reason to believe the applicant received money over $40,000 because the amount went up as the interviews progressed.  He was also aware of other activities regarding gambling that made him think the applicant had made more money.

	c.  Major (MAJ) MV, Executive Officer, Region 4, Support Element ARCD, stated he (the applicant) talked to him about his frustrations with his chain of command with regard to his retirement packets and flag.  MAJ MV stated he explained to the applicant his flag was from his previous unit and he didn't have any information on it.  The applicant told him he had a court case pending and did not want to disclose the details.

	d.  The board members asked several questions about whether the characterization of the applicant's service on a discharge or the rank in which he was discharged would prevent his eligibility to retire.  The board was told that every Soldier had to apply for retirement and the Soldier could visit a transition office and inform them they were being separated and wanted to retire.  The only person who could deny the retirement was the Secretary of the Army.

	e.  The applicant testified that he pled guilty in the Federal case because during the course of 2002 to 2005 he was involved with other Soldiers in acquiring equipment from the CDC.  The majority of the equipment was being used for the Reserve center, a lot was being thrown away, and he gave a lot of it away.  He did not have the receipts and did not falsify any emails to get the equipment from CDC.  All he had to do was to show his ID card and sign a transfer document.  Had he known he was supposed to have written documentation to give in order to request the equipment, he would have done so.  He didn't follow the regulations; he took the regulations for what he knew in his head and not what he read.  Based on that, he told the judge he apologized for not following the rules.

	f.  The administrative board concluded on 2 September 2010 and recommended the applicant be discharged with a general, under honorable conditions discharge.

9.  On 6 January 2011, an MEB convened at Fort Campbell, KY, and diagnosed the applicant with the unfitting conditions of cervicalgia and right shoulder impingement.  The MEB recommended his referral to a PEB.

10.  In a memorandum to the Department of the Army (DA), Deputy Chief of Staff, Personnel, dated 27 March 2013, Lieutenant General (LTG) JWT, Commander, Headquarters (HQ), USAR Command, stated in accordance with AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) he reviewed the MEB proceedings and the separation proceedings against the applicant and determined his separation proceeding must have precedence over his physical disability case.  The MEB proceedings did not establish any causal connection between his unfitting medical conditions and the misconduct that was the basis of the separation case.  LTG JWT recommended his separation case take precedence over the enclosed retirement application. 

11.  On 1 October 2013, the approving authority, the Assistant Secretary of the Army (ASA), (Manpower and Reserve Affairs (M&RA)), approved the applicant's separation action and directed the issuance of a general, under honorable conditions discharge.  On 1 November 2013, he was discharged accordingly.

12.  The DD Form 214 he was issued shows he was discharged in the rank of SFC under the provisions of AR 635-200, chapter 14, by reason of misconduct (civil conviction), with an under honorable conditions (general) characterization of service.  He completed 12 years, 9 months, and 25 days of net active service during this period of service and had a total of 23 years, 10 months, and 1 day of net active service.

13.  In the processing of this case an advisory opinion was received on 13 March 2014 from the Deputy, Operations Management Division, HRC.  The advisory official recommended disapproval of the applicant's request and opined, in part, that:
	a.  The applicant was involuntarily separated for misconduct by the ASA (M&RA) and an application for voluntary retirement was forwarded as part of his separation action.  The ASA (M&RA) elected to involuntarily separate the applicant and not retire him.

	b.  His contention that he was unable to retire because his flag was never lifted is incorrect.  AR 600-8-2 provides that enlisted Soldiers who are flagged may submit retirement applications to be considered by the retirement approval authority.

14.  In a response to the advisory opinion, dated 28 March 2014, the applicant's counsel stated:

	a.  The advisory opinion that stated enlisted Soldiers who are flagged may submit retirement applications to be considered by the retirement approval authority is accurate.  However, the applicant remained coded in the Army system under adverse flag code "A."  He should have had the flag reviewed and replaced with a flag coded "H" for the punishment phase as required due to his plea deal.  As of 24 March 2013, the applicant completed all punishment phases and should have had all flags lifted.  According to the enclosed personnel network (PERNET) screenshot, dated 30 March 2014, it still has his "SFPARS coded A for adverse action."

	b.  As of 25 March 2013, the applicant should not have been flagged for any reason and his fourth retirement request submitted through his chain of command with a requested retirement date of 1 August 2013 should have been submitted to HRC/approving authority for processing.  However, all his requests went unanswered and were never forwarded to the approving authority for review.  Clearly his command failed to follow the applicable regulations pertaining to the applicant's flags and retirement requests causing him to remain improperly flagged which resulted in his involuntary separation when he should have been able to voluntarily retire.

	c.  With his response counsel provides the following previously submitted documents:  DA Form 268, DA Form 4856, one page from the summary of proceedings, a letter, two emails, DA Form 4187 (Personnel Action), DA Form 31 (Request and Authority for Leave), and DA Form 2339 (Application for Voluntary Retirement).  He also provides a PERNET printout.

15.  AR 600-8-2, states, in part, for a Soldier flagged pending adverse action and is pending involuntary separation or discharge, remove the flag on the date HQDA or the appropriate commander approves retention of the Soldier, or on the date the Soldier is reassigned to the transition point (active duty) or discharge orders are published (Reserve Components).

16.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  

17.  Title 10, U.S. Code, section 3914 states that, under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service for an active Federal service retirement may, upon his request, be retired.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was initially flagged pending adverse action based on the FBI investigation into his being one of the main subjects involved in the fraudulent appropriation and sale of over $1,000,000 of Government equipment.  His counsel's contention his flag should have been lifted once the punishment phase of the civil court case was completed is inaccurate.  After he was convicted in civil court, he was still pending adverse action as he was being processed for involuntary separation and in accordance with Governing regulations the flag would have been left in place until the date he was assigned to the transition center on 1 November 2013.

2.  Although the applicant was eligible to retire, his chain of command recommended he not be allowed to voluntarily retire while he was pending medical processing and facing involuntary separation due to his misconduct.  As stated by the advisory official, his application for voluntary retirement was submitted by his chain of command and was forwarded as part of his separation action.  However, the approving authority elected to involuntarily separate the applicant and not allow him to voluntarily retire.  Retirement with less that 30 years of active Federal service is not an entitlement.  There is no evidence of an error or injustice.

3.  In view of the foregoing, he is not entitled to the 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)                                         AR20130022303





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ABCMR Record of Proceedings (cont)                                         AR20130022303



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