IN THE CASE OF:	  

		BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20140020242 


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, in effect:

* separation pay in accordance with (IAW) Title 10, U.S. Code, section 1174 (10 USC 1174)
* referral to a medical evaluation board (MEB) for possible disability separation
* early retirement as offered to Regular Army enlisted Soldiers with over 15 years of active federal service [presumably under the Temporary Early Retirement Authority (TERA)]

2.  The applicant states:

   a.  He was denied reenlistment and extension after a year and a half-long ordeal of first being told he could reenlist or extend, later to be told he could not.
   
   b.  He was told he would receive separation pay IAW 10 USC 1174, since he was involuntary separated from the Army.  His reenlistment eligibility code was changed 4 days before his separation date.  He has enclosed a letter that he and his wife wrote to his Member of Congress and the response to his Member's inquiry that was written by his former battalion commander, the same person he believes lied and showed no integrity or loyalty in this matter.

   c.  This injustice came about after his battalion command team continued to make him work and gave him false hope and the mindset that the chain of command would let him reenlist or extend.  He signed a reenlistment contract and extension paperwork; his company commander and battalion commander approved both packets, only to later be told, just 2 weeks from his 90-day window, he could not reenlist or extend.  His battalion commander signed the DA Form 4187 (Personnel Action) in front of him on 7 November 2013, approving his request for extension.
   
   d.  He is not seeking relief for himself, he wants this change for his wife of almost 16 years and their 3 children.  It is unfair to them that after everything that they have been through, they do not get to enjoy the separation pay or early retirement.  His battalion commander heard an unsubstantiated rumor after he signed his reenlistment paperwork, and that is when he was informed about the brigade commander's disapproval of his request.  However, when he inquired about the paperwork, he was not provided a copy until 20 December 2013.  The reason for the disapproval of his request was not what was documented, but a rumor.  Because of this, he and his family had to move to Michigan with only about 2 weeks of planning and he was not allowed any transition time.
   
   e.  He could have also been considered for a medical board; he believes he would have been approved for medical retirement.  Additionally, not long after this ordeal, the Army approved early retirement for personnel with 15 or more years of active duty, which he could have also applied for.

3.  The applicant provides:

* DA Form 4187, signed by the applicant and his company commander on  6 November 2013
* DA Form 4187-1-R (Personnel Action Form Addendum), signed by both his battalion commander (on 7 November 2013) and his brigade commander (undated)
* a printout of retention data from the RETAIN system
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 27 February 2014
* a 3-page typed letter, undated, presumably addressed to his Member of Congress
* a letter from the office of his Member of Congress, dated 16 April 2014
* a letter to his Member of Congress from his former battalion commander, dated 13 February 2014
* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report), covering the period 2 June 2013 through 23 December 2013




CONSIDERATION OF EVIDENCE:

1.  After prior active service in the Regular Army and Army National Guard, the applicant reenlisted in the Regular Army on 22 January 2007.  His record shows he served in military occupational specialty 92Y (Unit Supply Specialist).

2.  The applicant was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 May 2010.

3.  The applicant's record contains:

   a.  A DA Form 4187 that shows his duty status changed from "Present for Duty (PDY)" to "Confined by Civil Authorities (CCA)," effective 13 November 2012.
     
   b.  A second DA Form 4187 that shows his duty status changed from "CCA" to "PDY," effective 15 November 2012.
   
   c.  Both of these DA Forms 4187 contain a stamped entry in Section IV (Remarks) consisting of the word "Received," a date, and the words "AWOL (absent without leave) APPREHENSION."

4.  Orders 324-0017, issued by Headquarters, U.S. Army Garrison, Fort Carson, Fort Carson, Colorado on 20 November 2013, ordered the applicant's discharge from the Army effective 27 February 2014.  The additional instructions appearing on these orders contain the statement "Not entitled to separation pay IAW         10 USC 1174."

5.  The applicant was honorably discharged from the Army on 27 February 2014, following 15 years, 4 months, and 27 days of total active service and 8 months and 7 days of prior inactive service.  His DD Form 214 shows in:

   a.  Item 24 (Character of Service), the entry "honorable";
   
   b.  Item 25 (Separation Authority), the entry "AR (Army Regulation) 635-200 (Active Duty Enlisted Administrative Separations), chap (chapter) 4";
   
   c.  Item 26 (Separation Code), the entry "LBK"; 
   
   d.  Item 27 (Reentry Code), the entry "3"; and
   
   e.  Item 28 (Narrative Reason for Discharge), the entry "Completion of Required Active Service."
6.  The applicant's record is void of any documentation that:

   a.  addresses a domestic violence that involves the applicant, which he contends occurred on 9 November 2011; 
   
   b.  addresses the nature of his confinement by civil authorities on 13 November 2012, aside from the DA Form 4187 previously addressed in paragraph 3 above; or  

   c.  addresses his requests to reenlist or extend his period of active service.

7.  The applicant's record is void of his separation physical, a physical profile form, or any other documentation that shows he suffered from a medical condition that rendered him unable to perform the duties required of his grade and/or MOS, unfit for further military service, or that warranted his referral to the Physical Disability Evaluation System (PDES).

8.  The applicant's record is void of and he failed to provide any evidence that shows he attempted to enlist in the Ready Reserve, he executed a 3-year written agreement to serve in the in the Ready Reserve, or he was unqualified for appointment or enlistment in the Ready Reserve.  Nevertheless, for reasons unknown, the U.S. Army Human Resources Command (HRC) issued Orders    D-03-404627 on 4 March 2014, which discharged him from the U.S. Army Reserve effective 4 March 2014 

   9.  The applicant provides:

   a.  A DA Form 4187, signed by the applicant and his company commander on 6 November 2013, and a DA Form 4187-1-R (Personnel Action Form Addendum), signed by both his battalion commander (on 7 November 2013) and his brigade commander (undated).  These documents show his company commander recommended approval of his request for a 22-month extension of his contracted service and expiration term of service (ETS) date; however, both his battalion and brigade commanders recommended disapproval of that same request.

   b.  A printout of retention data from the RETAIN system, which shows he was coded with an Immediate Reenlistment Prohibition Code of "9C," which is used to identify Soldiers who were fully-qualified for reenlistment; however, their request for reenlistment was denied by their O-6 (brigade level) commander. 

   c.  A 3-page typed letter, undated, presumably addressed to his Member of Congress, which states:
I was a staff sergeant in the U.S. Army and I was separated on 27 February 2014.  I am writing to you today to inquire about the process in which I was not allowed to continue my service after 15 years.  This process involved a roller coaster like effect for over a year, and a lot of [expletive] from my senior leaders and magical paperwork that could never be found until my wife contacted the CG's [Commanding General's] Hotline.
   
I will be as honest and upfront with you, and not hide the facts, sir.  On 9 November 2011, I was arrested for domestic violence against my spouse.  This happened at our home in Fountain, CO while I was stationed at Fort Carson, CO.  My wife and three children left Colorado while I was incarcerated and returned to our home state of Michigan.  Upon my release from jail, I was returned to my unit who were very unsupportive of me and the entire situation of what happened.  No one cared and no one helped which led to a suicide attempt.  I was never counseled about anything that happened, the arrest, no Lautenberg Amendment, nothing.  I received a lot of volunteered counseling for what I did and was addressing issues from past deployments and other personal dealings that I went through as a child.
   
The attitude soon changed after my company received a new company commander, he saw and understood that I had a lapse of judgment and that should not define who I was as a Soldier, a man, a father nor a husband. He worked with me to ensure that I would be able to continue my service pending the civilian court case.  Throughout January of 2013 until November 2013 he was completely on board with my continued service.  I was and still am an outstanding NCO.  On 22 July 2013, I pleaded guilty to a deferred sentence of false imprisonment and two years' probation. Which I thought was a good deal as I was led to believe that I would be able to reenlist and finish my career.

On the 2nd of August of 2013, I signed, along with my commander's signature, the entire reenlistment contract to go indefinite in the U.S. Army and both my wife and I thought that everything was good to go.  During this time, my wife and I got back together and she and our children moved back to Colorado.  Then on the 5th of August, I was told that I could not reenlist due to my sentencing.  Even though my commander, the approving authority for my reenlistment and I signed everything that we needed in order for me to reenlist.  Of course, I was in disbelief and shock that the sudden reversal of mine and my family's plans were null in void.
   
After about three weeks of research through Army regulations and guidance from the JAG, the Post Retention Office and the Inspector General, I was able to find out that I could extend for 24 months due to the fact that I was on probation.  So once again I and the commander sent everything to retention with signatures.  We were then told, that the Department of the Army would let me extend but I could not do it until the 7th of November 2013.  I understood and thought that I was very fortunate that I would be able to remain in the service and retire in 4 years.

On the 7th of November, he [?] called me into his office and said that he would approve the extension for continued service, the Battalion CSM was also present.  On the 14th of November I was told that my Battalion Commander would not let me extend due to unsubstantiated rumors about myself and another NCO within the same battalion, this was told to me while I was on leave due to my oldest daughter attempting suicide.  The unit never investigated the rumors and I was not informed of anything derogatory.  Due to that rumor, my career in the Army after 15 and half years came to a sudden halt.
      
So within that week, once again I was told, "Yes" then they heard the rumor on 12 November.  My company commander, BMG, said that his hands were tied and that this was coming from Battalion.  I was not afforded the time or opportunity to do any of the mandatory and required separation training, VA Disability, Army Career Alumni Program, Resume writing.  This even left me and my family in a worse predicament than before.  My wife had to quit her job and move back to Michigan with no place to live.  Our three children were uprooted from their school and I was left with no job nor any thing to show for my many years of service and two deployments.

I have been Honorably Discharged, no bars to reenlistments or flags were initiated on me until the day I signed my DD Form 214. Then I was led to believe from my career counselor that the flag would entitle me to separation pay; IAW Title 10 US. Code § 1174 - Separation pay upon involuntary discharge or release from active duty. b) Regular Enlisted Members. (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). The ERUP code that I was now under was a 9C - Denied Retention by SA - Commander Quality (restricted to fully qualified Soldiers "IMREP R 10" who requested and were denied reenlistment by the 0-6 Commander).  I was denied reenlistment and extension and now I am not eligible for any separation pay or entitlements.  The copy of the DA Form 4187 that I received as my copy had the Brigade Commander's signature but "white out" where it has recommend approval, and an X is the disapproval box with a different sized pen.  The Battalion Commander signed it on 7 November, but had the disapproval block marked, even though I saw him sign it in his office on the 7th and marked "recommend approval" when he called me in his office. A lot of paper shuffling going on, if you ask me, no counseling's, no bars, no notice of separation.  I did not receive the mythical 4187 until the day I signed my DD 214.

This was an unexpected event that has happened to me and my family.  If we knew that I could not stay in due to a "rumor" than we could have planned better.  I know what I did in November of 2012, when I got arrested was wrong and I have accepted that and luckily got my family back and have received the help that I never thought that I needed before.  I have an outstanding military career and numerous awards for my dedication to service, always performing to be the best of my ability and continuously working in higher positions of responsibility then what my current rank was.

My wife…and I believe that we belong in the Army and that what I did does not warrant us to lose "our" retirement.  The Army is what changed me to get my life on track, since I was going nowhere when I was younger.  We have been married for almost 15 years and all of that has been in the service.
      
We just do not understand that if my reenlistment packet was signed off on and then my extension packet later on, why out of the blue did my battalion say "nope, sorry."  I know it may sound unreal and dragged out, but this is not just my future, this is my wife and children's future as well.  We do not know what you will be able to do in this situation but we need someone to listen as we both feel that we are being cheated out of our retirement or separation pay.  We would like to continue my service to this country.  Like stated above, I am currently unemployed and going to school full-time.
   d.  A letter to the applicant from the office of his Member of Congress, dated 16 April 2014. 
   
   e.  A letter to the applicant's Member of Congress from the applicant's former battalion commander, dated 13 February 2014, in which his former battalion commander states:
   
[The applicant] pleaded guilty and was convicted of false imprisonment on 22 July 2013 and received a deferred sentence of 24 months under a domestic violence action.  In accordance with Army Regulation 601-210 (Active and Reserve Components Enlistment Program), paragraph 4-4, [the applicant] was unqualified to reenlist as a person released from custody or restraint of a court under procedures that do not result in final disposition of the charge.  However, he was eligible to extend his reenlistment under the provisions of Army Regulation 601-280 (Army Retention Program), paragraph 4-9, which states Soldiers pending legal action, either military or civil, provided otherwise qualified and recommended by the commander, may be extended until final outcome of action. On 6 November 2013, a DA Form 4187 was submitted by [the applicant's] unit to higher headquarters recommending approval for a 22-month extension, which was denied due to the character of the Soldier and other circumstances surrounding [the applicant].  In accordance with Army Regulation 601-280, commanders are authorized to disapprove requests for extension where the conduct of the Soldier does not merit an exception to policy for an extension to a current enlistment contract.

	f.  A copy of the applicant's last NCOER, covering the period 2 June 2013 through 23 December 2013, which shows he received "excellence" and "success" ratings during the rating period.  This NCOER does not contain any derogatory comments.
   
10.  Army Regulation 635-5-1 (SPD Codes), in effect at the time, prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  This regulation provides that SPD code "LBK" applies to Soldiers who are involuntarily discharged or released from active duty (REFRAD) after the completion of their required period of active service.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes the eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

* RE code 1 applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated
* RE code 3 applies to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification is waivable

12.  Title 10, U.S. Code, section 1174 provides that a Regular enlisted member of an Armed Force, who is involuntarily discharged or as a result of denial of reenlistment, and who has completed 6 or more but less than 20 years of active service immediately before that discharge, is entitled to separation pay under subsection (d) unless the Secretary concerned determines the conditions under which the member is discharged do not warrant payment of such pay (emphasis added).  Subsection (e)(1)(A) states as a condition of receiving separation pay under this section, a person otherwise eligible for that pay shall be required to enter into a written agreement with the Secretary concerned to serve in the Ready Reserve of a Reserve Component for a period of not less than 3 years following the person's discharge or release from active duty.

13.  Department of Defense Instruction 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay) states payment of non-disability separation pay is authorized to members of the Regular and Reserve Components involuntarily separated from active duty:

	a.  if they are on active duty or full-time National Guard duty and have completed at least 6 years but fewer than 20 years of active service;

	b.  if their separation is characterized as honorable; and

	c.  if they entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of a Reserve Component of the Armed Forces for a period of not less than 3 years following separation from active duty.  A member who enters into this written agreement and who is not qualified for appointment or enlistment in the Ready Reserve need not be enlisted or appointed by the Military Service concerned to be considered to have met this condition of eligibility for separation pay.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.
   a. Paragraph 4-7 provides that medical treatment facility (MTF) commanders with primary care responsibility will evaluate those referred to him or her and will, if it appears as though the member is not medically qualified to perform the duties of their office, grade, rank, or rating, or fails to meet retention criteria, refer the member to an MEB.

   b. Paragraph 4-8 provides that when a commander believes that a Soldier within their command is unable to perform the duties of their office, grade, rank, or rating because of physical disability, the commander will refer the Soldier to the responsible MTF for evaluation. The request for evaluation will be in writing and will state the commander’s reasons for believing that the Soldier is unable to perform his or her duties. 

   c. Paragraph 4–9 provides that the MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.

   d. Paragraph 4–10 provides that MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in AR 40–501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15.  Department of Defense Directive 1332.18 provides guidance on separations or retirement for physical disability.  Paragraph 3.3 states the sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank, or rating because of disease or injury.

16.  The National Defense Authorization Act, signed in 2011, reauthorized the service departments to implement early retirement under the TERA program to select members who meet certain criteria.  The time in service requirement, which is more than 15 years and less than 20 years, is set by law.  The other criteria are set by each branch of service so they can determine how best to shape the quality of their force.

17.  The Secretary of the Army signed Army Directive 2013-14 (TERA) on         10 June 2013. This directive authorized the implementation of an early retirement program consistent with the provisions of Public Law 112-81, National Defense Authorization Act for Fiscal Year 2012, Section 504, enacted 31 December 2011. In pertinent part, it states:

	a.  Retirement with at least 20 years of service has been, and will continue to be, the basic entitlement for those personnel who complete a career in the Army. This TERA is a discretionary authority and not an entitlement.

	b.  Soldiers denied continued service with an established involuntary separation date as a result of a Department of the Army centralized selection board process , who meet all eligibility criteria outlined below, may request TERA in lieu of involuntary separation:

   c.  NCOs denied continued service as a result of the Qualitative Service Program centralized selection board who are serving on active duty and have completed 15 but less than 20 years of active service as of the established involuntary separation date.

	d.  These basic eligibility requirements may not be waived.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for separation pay IAW 10 USC 1174, referral to an MEB for possible disability separation, or early retirement under the TERA program were carefully considered. 

2.  The evidence of record shows the applicant was confined by civil authorities for an unspecified reason on 13 November 2012.  The applicant provides that his confinement resulted from an arrest for domestic violence.  The evidence further shows he later requested a 22-month extension of his contracted service and ETS date; however, his chain of command disapproved his request, based on his character and other unspecified reasons.

3.  In accordance with Army Regulation 601-280, commanders are authorized to disapprove requests for extension when a Soldier's conduct does not merit an exception to policy for an extension to a current enlistment contract.

4.  Normally, Soldiers involuntarily separated after being denied reenlistment or extension are eligible for separation pay, unless the Secretary concerned (in effect, the reenlistment authority) determines the conditions under which the member was discharged do not warrant payment of such pay.  The applicant's separation orders state he was ineligible for separation pay.

5.  The applicant contends he was eligible for a medical separation; however, his record is void of documentation that shows he suffered from a medical condition that rendered him unable to perform the duties required of his grade and/or MOS or unfit for further military service.
   
6.  The applicant has failed to show, and he has not provided documentation that shows, his physical condition at the time of his separation was anything other than "fit for duty."  There is no evidence his physical condition at the time warranted his referral to the PDES.  Nor is there any evidence of an error or injustice in his separation processing.    

7.  The applicant further contends he should have been offered early retirement, presumably under the TERA program, as was offered to Regular Army enlisted Soldiers with over 15 years of active federal service.  NCOs who had completed 15 years of active duty and who were denied continued service as a result of an approved centralized board were offered TERA.  The applicant was denied reenlistment or extension; however, it was his chain of command that denied his request for reenlistment, not a centralized board.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20140002440



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ABCMR Record of Proceedings (cont)                                         AR20140020242



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