PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2002081142


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Patrick H. McGann		Member
Ms. Kathleen A. Newman		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests reconsideration of his earlier appeal to have his reentry (RE) Code changed to a more favorable code and that he be provided back pay because he was not properly placed in the Individual Ready Reserve (IRR) upon his release from active duty (REFRAD).

3. The applicant states that his supporting documents and statement from his former commander clearly supports his claim. In support of his application, he submits a copy of his enlistment contract and a copy of his separation proceedings, signed by his former commander and battalion commander.

4. In support of his application, he submits and additional statement. He states that this Board denied his request because he signed his DD 214 (Certificate of Release or Discharge from Active Duty) acknowledging that he was discharged and not transferred to the IRR, which was untrue and very unjust. He asked his former commander to transfer him to the IRR; however, he did not receive proper documentation for his transfer. He was informed that he would receive his identification (ID) card and uniforms upon his return to his Reserve unit. He took the word of his former commander and supporting documents from his 201 File to be true evidence to support his claim for transfer. He is now requesting compensation for back pay due to his assignment to the IRR. He also states that his DD Form 214 failed to show his total time in service and his total prior inactive service.

5. The Memorandum of Consideration (MOC) of the Board’s prior review of the case dated 17 September 2002 (AR2002073593) is incorporated herein by reference as if wholly set forth.

6. The applicant’s contentions are new arguments that require Board consideration.

7. The Board concluded that the applicant's commander recommended that he be placed in the IRR; however, his DD Form 214 and orders confirmed that the applicant's discharge was directed and fail to show transfer. It also concluded that the applicant authenticated his DD Form 214 with his signature on the date of separation, thereby verifying that the information contained therein was correct at that time, which was never questioned or objected to. It further concluded that his RE Code of RE "3" was appropriate and there was no basis to change it.

8. The applicant's military records show that he enlisted in the US Army Reserve (USAR) on 4 January 1988, as a medical specialist (91A), in the rank and pay grade of PFC/E-3, for a period of 8 years with a statutory military service obligation (MSO) of 3 January 1996. He enlisted in the Regular Army on 3 March 1988. He completed basic combat training (BCT) and was assigned to



Fort Sam Houston, Texas to attend advanced individual training (AIT) in military occupational specialty (MOS) 91A. However, he failed AIT and was transferred to Fort Lee, Virginia to attend AIT in MOS 76P (Material Control and Accounting Specialist). While attending AIT for MOS 76P, he was counseled for failing three examinations and for failure to meet course standards. He was later processed for separation under the provisions of 635-200, chapter 13, for unsatisfactory performance. He was REFRAD on 21 October 1988.

9. The applicant provided a copy of his separation proceedings, dated 5 October 1988, that were signed by his commander. He recommended that the applicant be issued an honorable discharge under the provisions of Army Regulation 635-200, chapter 13, and that he be transferred to the IRR.

10. The applicant also provided a copy of a first endorsement to his separation proceedings, dated 18 October 1998, that was signed by the approval authority, the battalion commander. He directed that the applicant be transferred to the IRR due to his unsatisfactory performance.

11. Headquarters, US Army Quartermaster Center and Fort Lee Orders 202-13, dated 19 October 1988, show that the applicant was discharged and transfer to the IRR was not authorized.

12. Item 9 (Command to Which Transferred) shows the entry "NA" (Not applicable), item 12c (Net Active Service) shows the entry "00 07 19" (7 months and 19 days), and item 12e (Total Prior Inactive Service) shows the entry "00 00 00" (0 years, 0 months, 0 days days).

13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

14. Section VIII of the same regulation pertains to Mobilization Asset Transfer Program. It states that to retain potential mobilization assets, only those soldiers with no potential to meet mobilization requirements would be discharged. Soldiers transferred to the IRR to complete a statutory service obligation is mandatory for soldiers who have completed basic training (BT) or at least 8 weeks of one station training or one station unit training (OSUT). Soldiers separated for unsatisfactory performance whose service is characterized as under honorable conditions or honorable will be transferred to the IRR unless they clearly do not have potential for useful service under conditions of full mobilization. The separation authority must give due consideration to all pertinent factors.

15. Army Regulation 635-5 governs the preparation of the DD Form 214. It states, in pertinent part, that item 9 (Command to Which Transferred) will be completed to show the entry of "NA" when the applicant has no further military status. It also states that item 9 will be completed to show the entry "USAR Control Group (Annual Training, Reinforcement, as appropriate)" for soldiers who are REFRAD with a remaining statutory MSO and transferred or returned to USAR with no specific troop program unit (TPU). Item 12e (Total Prior Inactive Service) will be completed to show the amount of total prior inactive service, plus the amount of inactive service from previously issued DD 214, less lost time, if any. Delay Entry Program (DEP) time which begins on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in this block, but is creditable service toward the fulfillment of the statutory MSO.

CONCLUSIONS:

1. The evidence of record shows that the applicant enlisted in the USAR on 4 January 1988 for a period of 8 years with an established MSO of 3 January 1996. He enlisted on 3 March 1988 and continued to serve until honorably discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

2. The separation authority directed transfer to the IRR; however, the applicant's orders and DD Form 214 failed to show transfer. The regulation clearly stated that soldiers separated for unsatisfactory performance whose service is characterized as honorable would be transferred to the IRR. It also stated that transfer to the IRR to complete a statutory MSO was mandatory for soldiers who have completed BT. It is noted that he completed BCT, was never awarded an MOS, and was REFRAD with an honorable discharge.

3. The Board believes that it would now be appropriate, and in the interest of justice, to correct the applicant's separation orders and DD Form 214 to show transfer to the IRR. Therefore, he is clearly entitled to correction of Headquarters, US Army Quartermaster Center and Fort Lee Orders 202-13, dated 19 October 1988, to show additional instructions of: transfer to the USAR Control Group (Annual Training), 1 Reserve Way, Saint Louis, Missouri 63132-5200. He is also entitled to correction of item 9 (Command to Which Transferred) to show the entry "USAR Control Group (Annual Training), 1 Reserve Way, Saint Louis, Missouri 63132-5200.








4. Based on these corrections, the applicant is also now entitled to be issued an honorable discharge from the USAR. Therefore, recommend that orders be published honorably discharging the applicant from the USAR Control Group (Annual Training) with an effective date of 3 January 1996 and issued an Honorable Discharge Certificate with an effective date of 3 January 1996.

5. The applicant is not entitled to any points or compensation for back pay due to his transfer to the IRR.

6. The applicant's contentions are noted in regards to his total time in service and total prior inactive serve. His total prior inactive service shown in item 12e of his DD Form 214 is correct. According to regulation, his DEP time, which began after 1 January 1985, was not creditable service for pay but creditable service toward the fulfillment of his statutory MSO. Item 12c of his DD Form 214 that shows his "net active service this period" is also his "total time in service" of 7 months and 19 days. Therefore, item 12c and item 12e of his DD Form 214 is correct and should remain unchanged.

7. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case for the individual concerned be corrected:

         a. by amending Headquarters, US Army Quartermaster Center and Fort Lee Orders Number 202-13, dated 19 October 1988 to show additional instructions: transferred to the USAR Control Group (Annual Training), 1 Reserve Way, Saint Louis, Missouri, 63132-5200;

         b. by showing the entry " USAR Control Group (Annual Training), 1 Reserve Way, Saint Louis, Missouri, 63132-5200 in item 9 (Command to Which Transferred) of his DD Form 214;

         c. that orders be published showing that the applicant was honorably discharged from the USAR Control Group (Annual Training) with an effective date of 3 January 1996; and

         d. that the applicant be issued an Honorable Discharge Certificate from the USAR with an effective date of 3 January 1996.




2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__ro___ __pm___ ___kn___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond V. O’Connor, Jr.____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002081142
SUFFIX
RECON	YES/AR2002073593
DATE BOARDED	20030703
TYPE OF DISCHARGE	HONORABLE
DATE OF DISCHARGE	21 OCT 1988
DISCHARGE AUTHORITY	AR 635-200, C, 13r
DISCHARGE REASON	UNSATISFACTORY PERFORMANCE
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	4
2.
3.
4.
5.
6.