IN THE CASE OF:	  

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140004118 


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 reconsideration of his earlier request to correct his military records to show he was retired due to length of service.

2.  The applicant states that Title 10, U.S. Code (USC), section 1176 allows enlisted members to be retained who have completed 18 or more years of service, but less than 20 years of service.  Regular members who are selected to be involuntarily separated, or whose term of enlistment expires and who are denied reenlistment, and who are within 2 years of qualifying for retirement under sections 3914 or 8914 of Title 10, USC, or of qualifying to transfer to the Fleet Reserve or fleet Marine Corps Reserve under section 6330 of this title, shall be retained on active duty until the member is qualified for retirement.

3.  The applicant presents this law to show that there was an involuntary separation in his case.  He had more than 20 years of active service and was denied retirement.  His retirement was denied because of the nature of the crime for which he was convicted and for no other reason.  If the law provides provisions to retain a service member with 18 or more years of service but less than 20 years, why would it not also provide the same provision for a service member who has over 20 years with an approved retirement?

4.  The applicant's next argument concerns the Congressional intent of Title 10, USC, section 3914.  Under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has 20 years but less than 30 years of service computed under section 3925 of this title, "may upon his request be retired."  The Army contends that the word "may" authorizes the Secretary of the Army complete discretion on whether a service member will be allowed to retire.  He disagrees and believes the word "may" provides the Secretary discretion of "when" a service member will be allowed to retire, based on the strength and readiness of the Army for a particular military occupational specialty, the needs of the Army, and a blanket rule to decide who is permitted a retirement.  The Army's interpretation of this law allows the Secretary to simply deny any service member with less than 30 years service the right to retire for any reason.  He is asking the Board to consider his complaint and to review the actions taken by the Army to deny a veteran with more than 20 years a retirement.

5.  The applicant provides no additional documents.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130008582, on 16 January 2014.

2.  The applicant has provided a new and different argument pertaining to why he believes he should have been permitted a retirement.  As such, this constitutes new evidence requiring consideration by the Board.

3.  The original record of proceedings (ROP) indicates that the Board considered the following evidence:

	a.  Orders 306-0108, Fort Hood, TX, dated 2 November 2005 announced the applicant's approved retirement effective 30 June 2006, based on 20 years and 
5 days of active duty service.  These orders were subsequently rescinded.

	b.  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.  These orders were subsequently rescinded.

	c.  On 2 February 2007, the applicant was convicted in civilian court of aggravated sexual assault (three counts).  He was sentenced to 15 years in confinement for each count, with count two beginning when an earlier judgment and sentence from 2006 had ceased.

	d.  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 duty service.

	e.  On 8 February 2008, a request was made to withdraw the applicant's approved retirement due to his civilian conviction and sentence to 30 years in confinement.  The request was approved by the proper authority and his retirement orders were revoked.

	f.  In February 2008, the applicant was notified of the commander's intent to convene an administrative separation board under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct.  The brigade commander recommended approval of this board's action and directed that the applicant be separated with a characterization of service under other than honorable conditions.

	g.  On 5 March 2008, the Standing Enlisted Separation Board at Fort Hood, TX was notified to convene for the purpose of considering whether the applicant should be separated from the Army.  These board proceedings were not available for review.

	h.  In July 2008, the Deputy Staff Judge Advocate (SJA) at Fort Hood, TX provided a legal review concerning the applicant's separation.  The SJA recommended that no action be taken regarding the administrative separation board's recommendation.  Rather, the SJA recommended that the separation authority consider initiating a convenience of the government separation under the provisions of Army Regulation 635-200, paragraph 5-3.  The separation authority could then submit 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.

	i.  In March 2009, the Assistant Secretary of the Army, Manpower and Reserve Affairs, was informed of the applicant's conviction and 30-year sentence to confinement and that he had completed over 20 years of service.  It was recommended that if involuntarily separated 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 code of 4.

	j.  On 2 August 2011, the applicant was accordingly discharged by reason of Secretarial authority with a general, under honorable conditions characterization of service.

4.  The original ROP indicates that the Board determined the applicant was involuntarily separated under the provisions of Secretarial Authority.  The applicant's contention that such action was inappropriate was found to be without merit.  Furthermore, Soldiers who have completed 20 or more years of service, but less than 30 years and have completed all required service obligations, are eligible for but not entitled to retirement upon request.  In the applicant's case, it was apparent that the decision was that he did not merit retirement.

5.  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.

6.  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.



7.  Title 10, USC provides at:

	a.  section 1176 (Enlisted members: retention after completion of 18 or more, but less than 20 years of service) that 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 or transfer, unless the member is sooner retired or discharged under any other provision of law.

	b.  section 3914 (Twenty to thirty years: enlisted members) 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 computed under section 3925 of this title may, upon his request, be retired.

	c.  section 3917 (Thirty years or more: regular enlisted members) that a regular enlisted member of the Army who has at least 30 years of service computed under section 3925 of this title shall be retired upon his request.

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 he has completed more than 
20 years service.  He argues that the law does not give the Secretary the discretion to deny a Soldier with more than 20 years service a retirement, but only that he can decide when to retire him.

2.  The available evidence shows that the applicant was convicted by a civilian court and sentenced to confinement for 30 years.  As a result, the Secretary of the Army exercised his authority to deny the applicant a voluntary retirement based on his completion of more than 20 years of active duty service.

3.  The governing law and regulations clearly state that those enlisted Soldiers who complete 30 or more years of years of service are entitled to a retirement upon their request.  Those enlisted Soldiers who have served more than 20 years but less than 30 years, are not so entitled.  However, the Secretary of the Army may approve retirement requests from these Soldiers.

4.  The applicant's disagreement with how the Army interprets and applies the particular sections of the law pertaining to retirement of enlisted Soldiers is without merit.  There is no error or injustice in what the Army has done in the applicant's case.
5.  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 to amend the decision of the ABCMR set forth in Docket Number AR20130008582, dated 16 January 2014.




      _______ _   __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)                                         AR20140004118





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ABCMR Record of Proceedings (cont)                                         AR20140004118



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