2. The applicant requests, in effect, that his 9 October 1990 reenlistment be annotated to 30 April 1990.
3. The applicant states that he now has a break in service because he was not informed that he could reenlist in the USAR Control Group (Reinforcement). When he received his discharge he immediately contacted the Army Reserve Personnel Center (ARPERCEN), discovered that he could reenlist, and reenlisted. However, his reenlistment still leaves him with a break in service.
4. The applicant's military records show that he enlisted in the USAR Delayed Entry Program for 6 years on 30 April 1984, giving him an expiration of term of service (ETS) of 29 April 1990.
5. He entered on active duty in the Regular Army on 18 May 1984, was promoted to pay grade E-5, and was awarded the military occupational specialties of military police and corrections noncommissioned officer. He was released from active duty and transferred to the USAR Control Group (Reinforcement) on 5 December 1989 by reason of ETS, holiday early transition program.
6. On 15 August 1990 the ARPERCEN published orders discharging the applicant from the USAR by reason of ETS.
7. On 10 October 1990 the applicant reenlisted in the USAR for 4 years.
8. On 13 October 1992, over 2 years later, the ARPERCEN again discharged the applicant effective 9 October 1990.
9. On 13 November 1992 the ARPERCEN voided its 15 August 1990 order discharging the applicant.
10. The contracts, discharges and reenlistments affecting the applicants career are summarized as follows:
- 30 April 1984 enlistment for 6 years (ETS of 29 April 1990).
- 29 April 1990 the applicant completed his required service and should have been discharged.
- 15 August 1990 discharge orders were issued due to the applicants completion of his required service in April 1990.
- 10 October 1990 the applicant reenlisted for 4 years.
- 13 November 1992 discharge orders were issued to affect the applicants separation 1 day prior to his 10 October 1990 reenlistment.
- 13 November 1992 the applicants original 15 August 1990 discharge order was voided.
11. Subsequently, the applicant entered on active duty in the Active Guard and Reserve (AGR) program, was promoted to pay grade E-6, and reenlisted for 6 years on 28 June 1994.
12. Army Regulation 135-178, paragraph 1-30 states that Provided that there is no evidence of fraud or manifest error and the member receives actual or constructive delivery, orders discharging a soldier from the USAR will not be revoked or the effective date of separation changed after the effective date of the discharge . . .
13. In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the ARPERCEN. The ARPERCEN confirmed that the applicants ETS was 29 April 1990 and had been discharged due to his ETS on 15 August 1990. That order was voided since a second discharge order dated 13 October 1992 discharged the applicant effective 9 October 1990. That discharge was based on the applicants 10 October 1990 reenlistment in the USAR (that reenlistment is not contained in the applicants military records).
CONCLUSIONS:
1. The applicant apparently reenlisted on 10 October 1990, which was after the effective date of his discharge.
2. As such, the applicant was ineligible to reenlist (versus enlisting as prior service) on 10 October 1990 since he did not have any military status at that time.
3. The ARPERCENs revocation of its 15 August 1990 discharge order was in contravention of Army Regulation
135-178 since that order was properly published after the effective date of the applicants discharge.
4. Therefore, the ARPERCENs subsequent set of discharge orders (the orders issued on 13 November 1992 effective 9 October 1990) would have no force or effect since the applicant had already been discharged. Simply stated, the applicant did not have any military status to discharge him from at that time.
5. Contrary to the applicants contention, it was not the ARPERCENs responsibility to inform a soldier who has not expressed any interest in retaining military status that he will be discharged at his ETS. This is especially true for soldiers serving on their initial enlistment such as the applicant.
6. However, the Board accepts that the applicant had desired to continue his military career in the USAR, and his records now need to be corrected to not only preclude a break in service, but to validate his service subsequent to his 15 August 1990 discharge. This requires annotating his reenlistment back to the actual date of his ETS and by changing his term of service to coincide with his 28 June 1994 reenlistment.
7. In view of the foregoing, the applicants records should be corrected as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected:
a. by showing that the applicant reenlisted for 4 years and 2 months on 29 April 1990 in pay grade E-5.
b. by revoking, rescinding, or voiding the discharge orders published on 15 August 1990 and 13 November 1992; and
c. by revoking, rescinding, or voiding the applicants 10 October 1992 reenlistment contract.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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