RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060015822 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright 

Chairperson

Mr. Patrick H. McGann, Jr.

Member

Ms. Karmin S. Jenkins

Member

	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, that item 28 (Narrative Reason for Separation), of his DD Form 214 (Certificate of Release or Discharge from Active Duty), be corrected to show the entry "Convenience of the Government" instead of the entry "Locally Imposed Bar to Reenlistment" for better clarity and justice.

2.  The applicant states, in effect, that he did not believe that he would be denied any benefits and he was unaware that he would not be eligible for benefits available to honorably discharged veterans.  He adds that he was told at separation that he would receive the same or similar benefits to those serving a full time 2-year term.  

3.  The applicant provides a copy of his DD Form 214 and a copy of a letter from the Department of Veterans Affairs (VA), dated 25 September 2006, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 21 December 1987, the date of his discharge.  The application submitted in this case is dated 13 November 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's record shows he enlisted in the Regular Army on 16 July 1986, for 2 years, with an established expiration of term of service (ETS) of 15 July 1988.  The applicant successfully completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Gordon, Georgia.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 31M, Multichannel Communication Equipment Operator. 



4.  On 20 April 1987, the commander issued a Letter of Reprimand (LOR) to the applicant for having a Blood Alcohol Test (BAT) result of .09 percent or more on 16 April 1987.  The LOR was imposed as an administrative action and was not punishment under the Uniform Code of Military Justice (UCMJ).  The commander stated that it was his intent to file this letter in the applicant’s Military Personnel Record Jacket (MPRJ) for a period of 3 years from the date of the letter or until his reassignment to another general court-martial jurisdiction, whichever was sooner.  The letter was referred to the applicant for his acknowledgement and comment. 

5.  On that same day, he acknowledged receipt of the reprimand and elected not to make a statement in his own behalf.  

6.  On 5 May 1987, the applicant was barred from reenlistment for, in effect, having been apprehended for DWI (driving while intoxicated) and being involved in a hit and run accident, which he failed to report, on 16 April 1987.  He was also informed that if he desired to appeal he must submit his appeal through channels within 15 days.  He was further informed that his bar would be initially reviewed by the commander 6 months from the date of approval, or 30 days prior to his scheduled departure date from current unit, or separation, whichever occurs first.
The applicant was advised that "Soldiers who perceive that they will not be able to overcome a bar to reenlistment may apply for immediate discharge.  Request will be processed in accordance with (IAW) Army Regulation 635-200, chapter 16."

7.  On 3 December 1987, the applicant submitted a request to be discharged prior to his ETS under the provisions of Army Regulation 635-200, chapter 16, paragraph 16-5(b), due to his inability to overcome a locally imposed bar to reenlistment.  He understood that this request was for his own convenience and once separated that he would not be permitted to reenlist at a later date.  The appropriate authority approved the applicant’s request on the same day.

8.  On 21 December 1987, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 16, paragraph 16-5(b) due to a locally imposed bar to reenlistment.  He was furnished an honorable discharge.  He had completed 1 year, 5 months, and 6 days of creditable service.  

9.  Item 26 (Separation Code), of the applicant's DD Form 214, shows the entry "KGF" and item 28 (Narrative Reason for Separation), shows the entry "Locally imposed Bar to Reenlistment." 


10.  The applicant's signature was affixed to item 21 (Signature of Member being Separated), of his DD Form 214, indicating he had reviewed the information shown on the form and it was complete and correct, to the best of his knowledge.

11.  The applicant provided a copy of a letter from VA, dated 25 September 2005, from the enrollment coordinator.  The enrollment coordinator discussed options available to him that could possibly enable him to receive VA medical benefits.  Two options were given; however, he has redacted and modified the letter and has retained only that option that had a reference to review of his DD Form 214 for possible amendment.

12.  Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 6 of the regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service.  This chapter specifies that bars will be used when immediate administrative discharge from active duty is not warranted.  Examples of rationale for reenlistment disqualification are, but not limited to, AWOL (absent without leave), indebtedness, recurrent nonjudicial punishment, slow promotion progression, no demonstrated potential for future service, substandard performance of duties, and substandard appearance (overweight).

13.  Paragraph 6-5, of Army Regulation 601-280 states, in pertinent part, that approved bars to reenlistment will be reviewed by the proper unit commander at least 6 months after the date of approval, and 30 days before the Soldiers’ scheduled departure from the unit, or separation from the service.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligation.  Paragraph 16-5b applies to personnel who are denied reenlistment and provided that, if they received a locally imposed bar to reenlistment, and are unable to overcome the bar, they may apply for immediate separation.

15.  Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator "KGF" as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as "Locally Imposed Bar to Reenlistment" and that the authority for discharge under this separation program designator is "Army Regulation 635-200, chapter 16, paragraph 16-5b."

16.  Paragraph 5-3 of Army Regulation 635-200 pertains to the separation of enlisted personnel for the convenience of the government.  It states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority.  Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the government will be at the Secretary’s discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

17.  VA Pamphlet 80-06-01 (Federal Benefits for Veterans and Dependents) describes the variety of Federal benefits available to veterans and their dependents.  Eligibility for most benefits is based upon discharge from active military service, under other than dishonorable conditions.  Honorable and general discharges qualify a veteran for most VA benefits.  Dishonorable and bad conduct discharges resulting from general court-martial may bar an applicant from receiving VA benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly barred from reenlistment due to his apprehension for having been DWI and having been involved in a hit and run accident, which he failed to report, on 16 April 1987.  

2.  The locally imposed bar to reenlistment was imposed in compliance with 
applicable regulations with no indication of procedural errors which would tend
to jeopardize his rights.

3.  The evidence shows the applicant was advised he had the option of applying for discharge if he felt he could not overcome the bar to reenlistment.

4.  The evidence shows the applicant requested discharge under the provisions of Army Regulation 635-200, chapter 16, paragraph 16-5(b) on 3 December 1987; and, his request was approved by the appropriate authority.

5.  The evidence shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 16, paragraph 16-5b, due to a locally imposed bar to reenlistment based upon his request for discharge.  



6.  The Board notes that the applicant’s narrative reason for separation is correct in accordance with regulations then in effect which shows he was assigned the proper SPD code of "KGF" which corresponds with his narrative reason "Locally Imposed Bar to Reenlistment."  

7.  The applicant contends that item 28 (Narrative Reason for Separation), of his DD Form 214, should be changed to read "Convenience of the Government" for better clarity and justice.  However, the evidence shows he applied for discharge for his own convenience, and not the convenience of the Government when he felt he could not overcome the bar to reenlistment.  The applicant has provided no evidence to show that the narrative reason for his separation was in error or unjust.  Therefore, he is not entitled to correction of item 28 (Narrative Reason for Separation), of his DD Form 214, to show the entry "Convenience of the Government."

8.  The Board does not change the narrative reason for separation for the purpose of enabling former service members to obtain eligibility for VA or other benefits.  The Board has no authority to direct the VA to award benefits.  Since most VA benefits are based on an individual's service, eligibility depends on the circumstances.  The applicant is advised to contact the nearest VA office to seek their assistance in determining all his rights and entitlements.

9.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 December 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 20 December 1990.  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

_KLW___  __PM____  __KSJ __  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.




_____Kenneth L. Wright _____
          CHAIRPERSON




INDEX

CASE ID
AR20060015822
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070510
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19871221
DISCHARGE AUTHORITY
AR 635-200, PARA 16-5B. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110
2.

3.

4.

5.

6.