RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20070001149 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 14 (Military Education) and Item 28 (Narrative Reason for Separation) of his separation document (DD Form 214) be corrected.

2.  The applicant states, in effect, that Item 14 of his separation document should be corrected to show his completion of airborne training and that Item 28 should reflect “defective enlistment.”  He indicates that he was separated as a result of a breach of contract.  

3.  The applicant provides the following documents in support of his application:  DD Form 214; Office of the Deputy Chief of Staff (DCS) G1 Letter; Self-Authored Letter, Subject:  Unqualified Resignation, dated 15 June 2006; Headquarters, United States Infantry Center Orders 290-2222, dated 17 October 2006; United States Infantry Center Permanent Orders 54-2952, dated 23 February 2006; Individual Jump Record (DA Form 1307); and United States Army Infantry School Airborne Course Diploma.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s Enlistment Document (DA Form 4) shows he enlisted the United States Army Reserve (USAR) on 11 May 2005, in the rank of specialist (SPC/E-4), for a period of 8 years.  A Statement for Enlistment prepared during his enlistment processing confirms he contracted for and was authorized Option 9C, the United States Army Officer/Warrant Officer Enlistment Program and Option 9D, the United States Army Incentive Enlistment Program Officer Candidate School (OCS) Bonus in the amount of $8,000.00, during his enlistment processing.

2.  On 23 May 2005, the applicant enlisted in the Regular Army (RA) and entered active duty.  Headquarters, United States Army Infantry Center, Fort Benning, Georgia Orders 221-1970, dated 9 August 2005, shows that the applicant was promoted to sergeant (SGT/E-5) on 6 August 2005.  These orders also show in the additional instructions that the Soldier was to attend OCS.

3.  On 19 January 2006, the applicant was commissioned a second lieutenant (2LT) in the RA.  He successfully completed the Airborne Course on 3 March 2006, and he was awarded military occupational specialty (MOS) 11Z1P (Infantry) and awarded the Parachutist Badge.

4.  An undated DSC G-1 Letter informed the applicant that by law, the enlistment bonus offered during his enlistment processing was not authorized, and that as a result, could not be paid.  The G1 further advised the applicant that he could apply to this Board and request relief and payment of the $8,000.00 bonus, which he was confident could be favorably resolved.

5.  On 15 June 2006, the applicant tendered his unqualified resignation based on learning that the OCS enlistment bonus offered him was not authorized and would not be paid.  

6.  On 17 October 2006, Headquarters, United States Infantry Center, issued Orders 290-2222, which authorized the applicant’s discharge from the Army on 30 October 2006.

7.  On 30 October 2006, the applicant was honorably discharged under the provisions of Paragraph 3-5, Army Regulation 600-8-24.  The DD Form 214 issued him at that time shows he completed 1 year, 5 months, and 8 days active federal service.  Item 14 does not include an airborne course entry, Item 26 (Separation Code) contains the Separation Program Designator (SPD) code KND, and Item 28 contains the entry “Miscellaneous/General Reasons.” 

8.  Army Regulation 635-5 prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-4h(14) of the separation documents regulation states that formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 will be listed in Item 14.  This information is to assist the Soldier in job placement and counseling; therefore, training courses for combat skills will not be listed.

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of KND is the appropriate code to assign to Soldiers separated under the provisions of Paragraph 3-5, Army Regulation 600-8-24, by reason of “Miscellaneous/General Reasons."

10.  Army Regulation 600-8-24, (Officers Transfers and Discharges) prescribes the policy for the separation and discharge of active duty officers.  Paragraph 3-5 states, in pertinent part, that any officer on active duty more than 90 calendar days may tender a resignation except when action is pending that could result in resignation for the good of the Service; officer is under a suspension of favorable actions, pending investigation; under charges; or any other unfavorable or derogatory action is pending.  The regulation provides no provisions for separating or discharging officers for defective enlistment contracts or breach of contract.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that Item 14 of his separation document should be corrected has been carefully considered and found to have merit.  The evidence of record confirms that the applicant completed the Airborne Course while on active duty, as evidenced by his completion diploma and the Parachutist Badge he was awarded on 3 March 2006.  As a result, Item 14 of his separation document should be corrected to show his completion of this course. 

2.  The applicant's contention that the narrative reason for his separation listed in Item 28 of his DD form 214 should be changed to show breach of contract was also carefully considered.  However, there is an insufficient evidentiary basis to grant this portion of the requested relief. 

3.  The evidence of record confirms that upon learning that he was not authorized to receive the enlistment bonus listed in his original enlistment contract, the applicant, rather than applying to this Board for relief in order to continue his service, instead elected to tender his unqualified resignation, and as a result of this resignation being accepted, he was honorably discharged.  

4.  By regulation, officers who request unqualified resignation are separated under the provisions of Paragraph 3-5, Army Regulation 600-8-24, are assigned an SPD code of KND, and are separated for “Miscellaneous/General Reasons."  The governing regulation provides no provisions for discharging officers for defective enlistment or breach of contract.  As a result, there is an insufficient evidentiary basis to provide this portion of the requested relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x ____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Item 14 of the applicant’s DD Form 214 by adding the entry “Airborne Course, 3 weeks, 2006"; and by issuing him a correction to his separation document that reflects this change.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of Item 28 of his DD Form 214.




      _________x_____________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070001149



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508