IN THE CASE OF:	   

		BOARD DATE:	  24 September 2015

		DOCKET NUMBER:  AR20140021725 


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 payment of involuntary separation pay in accordance with (IAW) the DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)) issued to him on 24 September 2013. 

2.  He states that he attempted to receive separation benefits throughout his out-processing from the Army.  However, at each attempt he was told that he was not eligible, which is why he never signed a Ready Reserve (RR) commitment.  His initial DD Form 214 did not award him separation pay.  However, after he was released from active duty the pay was approved and a DD Form 215 was prepared awarding separation pay.

3.  The applicant further states that after contacting everyone within the Army and the Defense Finance and Accounting Service (DFAS), he was informed that DFAS could not pay a non-service member and that he would have to submit his claim to the Army Board for Correction to Military Records (ABCMR).

4.  He provides copies of:

* DD Form 214
* DD Form 215
* two orders
* email correspondence
* final Leave and Earnings Statement (LES)


CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army, served in a variety of assignments through several periods of enlistments, and attained the rank and pay grade of sergeant first class (SFC)/E-7.  He also deployed to Iraq and Afghanistan and was awarded numerous awards and decorations.

2.  On 5 May 2010, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, section II, for conviction by civilian court.  Specifically for pleading guilty to charges of attempted crimes against nature and contributing to the delinquency of a minor.  The applicant acknowledged receipt of this notification and requested consideration of his case by an administrative separation board.

3.  On 13 July 2010, an administrative separation board convened to consider the applicant's case in order to determine whether he should be administratively separated from the Army prior to the expiration of his term of service.  The board recommended that he be retained in the Army.

4.  On 26 August 2010, the Commanding General (CG), 82nd Airborne Division, Fort Bragg, North Carolina, notified the applicant that separation action was being initiated against him under the provisions of Army Regulation 635-200, Chapter 2, section II, paragraph 2-6e, and Chapter 5, section I, paragraph 5-3, Secretarial plenary authority.  Specifically for being found guilty in Cumberland County Superior Court of attempted crimes against nature, contributing to the delinquency of a minor, being sentenced to 45 days in confinement, and 
36 months of supervised probation.  The CG informed the applicant that he intended to recommend that he receive a general, under honorable conditions discharge and advised him of his rights.

5.  On 27 September 2010, the CG, 82nd Airborne Division recommended to the CG, U.S. Army Human Resources Command (HRC), that the applicant be discharged from the Army with a characterization of service of general, under honorable conditions.  It was also recommended that he not be transferred to continue to serve in the Reserve components IAW the provisions of Army Regulation 635-200, paragraph 1-35.

6.  On 22 November 2011, the Director, Military Personnel Management, Washington, DC, returned the applicant's administrative separation action for administrative correction for the following reasons:

	a.  The applicant should be properly notified and provided an opportunity to respond.

	b.  The applicant was notified of his separation because he was "found guilty in Cumberland County Superior Court of the charges of attempted crimes of nature for contributing to the delinquency of a minor and being sentenced to 
45 days confinement and 36 months of supervised probation."  No other misconduct or adverse information was specified.

	c.  The command referred to significant misconduct and adverse information concerning the applicant other than that specified in the notification memorandum.  There was no evidence in the file provided for review that the applicant was notified that the information would be forwarded for consideration or afforded the opportunity to respond.

	d.  The command indicated the applicant was in a non-deployable status because he was on supervised probation for 36 months.  However, in a court order, dated 24 September 2010, the applicant's probation was changed from supervised to unsupervised.  Therefore, the applicant was not in a non-deployable status.

7.  On 27 March 2013, the Assistant Secretary of the Army, Manpower and Reserve Affairs (ASA, (M&RA)), directed the separation of the applicant with a service characterization of general, under honorable conditions.  The ASA (M&RA) stated that although an administrative separation board had recommended that the applicant be retained, his conduct fell far short of the conduct required by the Army of its noncommissioned officers (NCOs) and in the current operating environment, the Army could only retain those NCOs who adhere to appropriate standards of conduct.  He noted that the file documents provide substantial evidence that the applicant sexually assaulted his then 
12-year old stepdaughter while watching pornography and sexually pleasuring himself.  Therefore, the applicant's conduct, to include his plea of guilty, disqualified him from continued service and his discharge was in the best interest of the Army.  Additionally, he noted the separation authority did not provide an updated memorandum setting forth specific reasons justifying the applicant's discharge as being in the best interest, as required by Army Regulation 635-200, paragraph 2-6e(4)(d), however, he waived that requirement as the initial request memorandum met the intent of the regulation.

8.  Headquarters, U.S. Army Garrison, Fort Bragg, NC, Orders 204-0271, dated 23 July 2013, reassigned him to the U.S. Army Transition Point for transition processing with a discharge date of 30 August 2013.  These orders made no reference to the applicant's entitlement to separation pay.

9.  The applicant's DD Form 214 shows he was discharged on 30 August 2013 under the provisions of paragraph 5-3 of Army Regulation 635-200 by reason of Secretarial authority.  This form shows he received a general, under honorable conditions characterization of service.  This form also shows in:

* Item 4a (Grade, Rate or Rank), his rank at the time of separation was SFC
* Item 4b (Pay Grade), his pay grade at the time of separation was E-7
* Item 9 (Command to which Transferred), the entry "N/A" (Not Applicable)
* Item 12c (Net Active Service this Period), he served 16 years, 7 months, and 7 days
* Item 18 (Remarks), the entry "MEMBER IS ENTITLED TO NO INVOLUNTARY SEPARATION PAY"
* Item 26 (Separation Code), JFF

10.  Headquarters, U.S. Army Garrison, Fort Bragg, NC, Orders 263-0273, dated 20 September 2013, amended his discharge orders (Orders 204-0271, dated 23 July 2013) by adding an item "N" to the Additional Instructions portion of the orders and the statement "SOLDIER IS ENTITLED TO ONE-HALF SEPARATION PAY IAW 10 USC 1174 (Title 10 United States Code, Subsection 1174))."

11.  A DD Form 215, dated 24 September 2013, shows item 18 of his DD Form 214 was amended by adding "SEPARATION PAY--$41,377.99" and deleting the statement "MEMBER IS ENTITLED TO NO INVOLUNTARY SEPARATION PAY."

12.  The applicant's record contains a letter rendered by a representative of DFAS on 14 August 2014 in response to a congressional inquiry.  The DFAS representative advised the Member of Congress (MOC), in part, that in order to obtain separation pay the applicant would have needed to submit a request for personnel action and a written agreement to join the RR for a period of no less than 3 years following his separation from active duty prior to his date of separation (DOS) on 30 August 2013.  The applicant did not sign a written agreement to join the RR upon his DOS; therefore, he is not entitled to separation pay.  The DFAS representative further advised the MOC that the Army G-1 would be contacting those service members who were eligible to receive separation pay, had it not been for the requirement to enter into the RR, and to provide guidance for filing with the ABCMR, as only the ABCMR can authorize the entitlement post separation.

13.  In the processing of this case, an advisory opinion was obtained from Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, dated 30 March 2015.  The advisory official stated that after further review, and recommendation from the Office of The Judge Advocate General, the Army G-1 determined that the applicant is not entitled to separation pay IAW 10 USC 1174 and Department of Defense Instruction (DODI) 1332.29.  

	a.  Since the ASA (M&RA) separated the applicant under Secretarial plenary authority, IAW with DODI 1332.14, paragraph 3, secretarial plenary authority is not covered under convenience of the government separation to warrant half separation pay per DODI 1332.29.  Lawyers advised the Army G-1 that the way Army Regulation 635-200 has rolled-up "secretarial plenary authority" under the heading of Chapter 5, main heading "convenience of the government" is not correct and must be revised to align with DODI.  The DODI treats Secretarial plenary authority as a separate category.  The following documents were provided as enclosures to the advisory opinion:

	b.  HRC issued a DD Form 215, dated 26 March 2015, which voided the previously issued DD Form 215, dated 24 September 2013.

	c.  Headquarters, U.S. Army Garrison, Fort Bragg, NC, Orders 086-0262, dated 27 March 2015, revoked his discharge orders (Orders 204-0271, dated 23 July 2013).

	d.  Headquarters, U.S. Army Garrison, Fort Bragg, NC, Orders 086-0260, dated 27 March 2015, were issued to replace his original discharge orders and reassigned him to the U.S. Army transition point for transition processing with a discharge date of 30 August 2013.  Item b of the Additional Instructions portion of these orders contains the following statement "Soldier is entitled to no separation pay IAW 10 USC 1174."

	e.  A copy of the advisory opinion and enclosures were forwarded to the applicant and he was afforded an opportunity to respond, however, he did not render a response.

14.  The applicant provides email correspondence exchanged between him, personnel representatives, and finance representatives, which show that he attempted to resolve this matter on his own.  He also provides an LES which shows an amount of money was deducted from his August 2013 pay due to indebtedness for previously received separation pay.

15.  Chapter 14, paragraph 14-5 of Army Regulation 635-200, in effect at the time, provided that a Soldier may be considered for discharge when initially convicted by civil authorities or when action was taken tantamount to a finding of guilty if a punitive discharge would be authorized for the same or closely related offense under the Manual for Courts-Martial, or the sentence adjudged by civil authorities included confinement of 6 months or more without regard to suspension or probation.  A discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under this provision.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 states the separation of enlisted personnel under this paragraph is the prerogative of the Secretary of the Army.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

18.  10 USC 1174 provides that a regular enlisted member of an Armed Force, who is discharged involuntarily 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.  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 RR of a Reserve Component for a period of not less than 3 years following the person's discharge or release from active duty.

19.  Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay and provides separation pay formulas as authorized by DODI 1332.29 dated 20 June 1991 and other Department of the Army guidance resulting from Public Law 101-510.  The circular also illustrates the various types of separation that are either eligible or ineligible for separation pay.  It states, in pertinent part, that separation pay is authorized for Soldiers serving on active duty on 5 November 1990 who were involuntarily separated prior to completion of obligated service or who were denied continuation of further service.  To be eligible for separation pay and benefits, individuals must have served 6 or more years of active Federal service and had to sign a Department of the Army Form 7154-R (Agreement to Join the RR) for a period of not less than 3 years.

20.  Paragraph 3.1 of (DODI) Number 1332.29, dated 20 June 1991, in pertinent part, states full payment of non-disability separation pay is authorized to members of the Regular and Reserve components involuntarily separated from active duty who meet each of the following four conditions:

	a.  subparagraph 3.1.1.1:  The member is on active duty or full-time National Guard duty and has completed at least 6 years, but fewer than 20 years, of active service.

	b.  subparagraph 3.1.2:  The service member's separation is characterized as "Honorable."

	c.  subparagraph 3.1.3:  The service member is fully qualified for retention, but is being involuntarily separated by the military service concerned through either the denial of reenlistment or the denial of continuation on active duty.

	d.  subparagraph 3.1.3:  The service member has entered into a written agreement with the military service concerned to serve in the RR of a Reserve component of the Armed Forces for a period of not less than 3 years following separation from active duty.  

21.  DODI 1332.29 further states:

	a.  full payment of non-disability separation is authorized if they were fully qualified for retention but were denied reenlistment or continuation by the Military Service concerned.  This includes a service member who is eligible for promotion as established by the Secretary of the Military Department concerned, but is denied reenlistment or continuation on active duty by the Military Service concerned under established promotion or high year of tenure policies; and

	b.  half payment of non-disability separation pay is authorized if they were denied reenlistment or continuation by the Military Service concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled payment of involuntary separation pay IAW the DD Form 215 issued to him on 24 September 2013 was carefully considered.

2.  Evidence clearly shows that he pleaded guilty, was found guilty, and was subsequently convicted by a civil court.

3.  Evidence shows that although an administrative separation board recommended that he be retained on active duty, his CG disagreed and recommended that he be discharged with a general, under honorable conditions discharge due to the nature of his offenses.  It was also recommended that he not be transferred to continue to serve in the Reserve components.

4.  Ultimately, following an extensive legal review of the facts and circumstances of the applicant's case, the ASA (M&RA) directed that he be discharged under Secretarial authority with a service characterization of general, under honorable conditions without entitlement to separation pay.  As a result, the applicant's original discharge orders were revoked and replaced by orders that clearly state that he is not entitled to separation pay and the DD Form 215 was also revoked.

5.  The fact that the applicant's misconduct resulted in a felony conviction rendered him unsuitable for retention or service and, as such, does not meet the criteria prescribed by DODI Number 1332.29 for receipt of either full or partial separation pay.

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)                                         AR20140021725



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ABCMR Record of Proceedings (cont)                                         AR20140021725



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