RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060011950 


	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.


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	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his records to show he completed 20 years of active duty for a length of service retirement.  

2.  The applicant states that according to the Public Law 102-484 and Army Regulation 601-280, he was “locked-in” to a 20-year retirement.  He states he refused to sign his DD Form 214 (Certificate of Release or Discharge from Active Duty) because it had multiple errors.  He also states he was absent without leave (AWOL) for only one day and was reduced four pay grades.  

3.  The applicant states he wants to appear before the Board.  

4.  The applicant provides a copy of Public Law 102-484, section 541; a portion of Army Regulation 601-280, chapter 6, dated 31 March 1999; personal statements; his Leave and Earnings Statement History, dated 19 December 2003; his Retirement Points Summary; and his DD Form 214 for the period ending 10 October 1988.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 10 October 1988.  The application submitted in this case is dated 27 July 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 30 June 1969 and was discharged on 29 July 1971 for the purpose of immediate reenlistment.  He reenlisted on 30 July 1971 and continued to serve in the Regular Army through three reenlistments.  He was promoted to staff sergeant on 13 September 1978.

4.  He reenlisted in the Regular Army on 11 October 1983 for a period of 5 years. 

5.  On 6 February 1987, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty on three separate occasions.  His punishment consisted of a forfeiture of $342.00, 14 days restriction, and 14 days extra duty.  All punishment was suspended for 180 days.  The applicant did not appeal the punishment.  On 11 February 1987, the punishment suspended on 6 February 1987 was vacated.  

6.  On 1 April 1987, the company commander recommended that the applicant be barred from reenlistment.  The bar was based on the applicant’s Article 15, UCMJ, dated 6 February 1987; charges pending punishment under Article 15, UCMJ; his relief for cause Enlisted Evaluation Report in September 1986 for unsatisfactory performance; and extensive counseling by his superiors for numerous acts of indiscipline.  The commander stated that the applicant’s performance had been substandard, that he had been unable to manage his personal and financial affairs, that he had frequent difficulties with his fellow workers and roommates, and that he was heavily in debt.  The commander stated that it was his intent to deny the applicant the opportunity to attain retirement eligibility.  The applicant was counseled and advised of the basis for the bar to reenlistment action.  He submitted a statement in his own behalf; however, that statement is not on file.

7.  On 20 April 1987, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of $342.00 and 14 days extra duty and restriction.  The applicant did not appeal the punishment.

8.  On 8 June 1987, the applicant accepted NJP under Article 15, UCMJ for failure to report for extra duty on three separate occasions and for failure to obey an order of the first sergeant.  His punishment consisted of a reduction in pay grade from E-6 to E-5, a forfeiture of $600.00 pay per month for 2 months, and 30 days restriction.  The applicant’s appeal of the punishment was denied on 16 June 1987.

9.  The Enlistment Eligibility Activity (EEA) on 20 July 1987 approved the bar to reenlistment.  There is no evidence that the applicant appealed the bar.  There is no evidence of record that the bar to reenlistment was reviewed at 6-month intervals subsequent to approval by the EEA, or 30 days prior to the applicant’s discharge.

10.  On 7 August 1987, the applicant was convicted by a special court-martial of being AWOL for one day; for disobeying a lawful command of a commissioned officer on three occasions; for disobeying an order of a noncommissioned officer (NCO); and for breaking restriction.  He was sentenced to a reduction in pay grade from E-5 to E-3 and a forfeiture of $538.00 pay per month for 6 months.  As a result of a pretrial agreement, the convening authority on 1 October 1987 approved only so much of the sentence that provided for reduction to pay grade E-3.

11.  On 12 April 1988, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful command from his commander to remove the E-5 insignia from his uniform; for impersonating an NCO by wearing the insignia of a sergeant; and for failure to go to his appointed place of duty.  His punishment consisted of a reduction to pay grade E-2, a forfeiture of $175.00, suspended for 3 months; and 7 days restriction.  The applicant did not appeal the punishment.  

12.  The applicant was honorably discharged on 10 October 1988 at the expiration of his term of service (ETS).  He completed 19 years, 3 months, and 10 days active Federal service with one day of lost time due to AWOL.

13.  After a break in service, the applicant enlisted in the Georgia Army National Guard (GAARNG) on 18 December 1996.  He was discharged from the GAARNG on 1 January 1998 and was transferred to the U.S. Army Reserve (USAR).

14.  The applicant’s Chronological Statement of Retirement Points shows the ending date of his service in the USAR as 30 August 2004 at which date he completed 20 years, 3 months, and 11 days total service for longevity pay purposes.  However, only one of his years in a Reserve component was a qualifying year.

15.  Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 6 of that regulation in effect at the time provided for barring from reenlistment individuals whose continued active duty was not in the best interest of the military service.  Paragraph 6-5d(3) stipulated in part that bars to reenlistment initiated against individuals having 18 but less than 20 years active Federal service at their ETS, and who were not extended to attain retirement eligibility would be approved only by the EEA.  Such bars would contain a statement that it was the intent of the commander to deny the individual the opportunity to attain retirement eligibility.  Paragraph 6-5i stated that approved bars would be reviewed by the proper unit commander at least each 6 months after the date of approval and 30 days prior to separation from the service.

16.  Public Law 102-484 enacted on 23 October 1992, added Section 1176 to Title 10, United States Code, Section 1176 covers retention of enlisted members after completion of 18 or more, but less than 20 years of service.  It states 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, or qualifying for transfer to the Fleet Reserve or Fleet Marine Corps Reserve under section 6330 of this tile, shall be retained on active duty until the member is qualified for retirement or transfer to the Fleet Reserve or Fleet Marine Reserve, as the case may be, unless the member is sooner retired or discharged under any other provision of law.

17.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that according to the Public Law 102-484 and Army Regulation 601-280, he was “locked-in” to a 20-year retirement.  A bar to reenlistment was initiated in April 1987.  His commander indicated it was his intent to deny the applicant the opportunity to attain retirement eligibility.  His bar was approved, in accordance with regulatory guidance, by the EEA on 20 July 1987.  He was discharged from active duty on 10 October 1988 at his ETS.  At that time, he had completed 19 years, 3 months, and 10 days active Federal service. 

2.  Public Law 102-484 was not enacted until 23 October 1992, which was 4 years after he was discharged.  Therefore, the provisions of this law do not apply to the applicant.  

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 October 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 9 October 1991.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x_____ x_____ x______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




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          CHAIRPERSON




INDEX

CASE ID
AR20060011950
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070412
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
135.0200
2.

3.

4.

5.

6.