IN THE CASE OF:	  

		BOARD DATE:	       12 February 2009

		DOCKET NUMBER:  AR20080016724 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show he was authorized separation pay upon his discharge in May 1983.

2.  The applicant states that this request is a letter for reconsideration of his earlier request for medical retirement or disability severance pay; however, in his statement, he clearly states that he is requesting separation pay.  He argues that:

	a.  He was discharged due to the Army’s determination that he was ineligible for reenlistment after having served a total of 6 years, 9 months, and 23 days of creditable active service and that he had every intention of reenlisting but was told he was ineligible for reenlistment.  He adds that by law, enlisted members who are discharged involuntarily or as a result of denial of reenlistment after having served more than 6 years are entitled to separation pay; 

	b.  He believes there was a fraudulent behavior involved in the criminal investigation concerning his being a victim of aggravated assault and not a victim of a training accident as stated in the report submitted by the Criminal Investigation Division (CID) of the U.S. Army Criminal Investigation Command (USACIC) for the purpose of protecting certain commissioned officers from certain misconduct regarding their dereliction of duty.  He adds that the CID report provides proof that all the officers interviewed asserted that another Soldier discharged his M16 rifle with the intention to cause bodily harm to him (the applicant) on 23 May 1981, at Fort Hood, Texas.  This unlawful injury caused by the intentional misconduct of the other Soldier hindered his entitlements of many possible benefits including a claim filed for Post Traumatic Stress Disorder (PTSD) which was denied by the Department of Veterans Affairs (DVA) due to the DVA’s finding that the shooting was the result of a training accident rather than a personal assault on him as well as award of the Purple Heart; and

	c.  The Board should also conduct an investigation and render a proper decision as to whether the decision regarding the shooting incident at Fort Hood, Texas, was the result of an aggravated assault or a training accident.  He also adds that it appears the Staff Judge Advocate protected officers who permitted a Soldier to conduct an assault with a weapon that was not equipped with flash-suppressor (i.e. blank adapter).  Had the case been tried outside the 2nd Armored Division, the fact that officers and senior leaders having command over the assault were in fact derelict in the performance of their duties by not supervising the personnel under their control and the case would have been different.  

3.  The applicant provides a copy of the USACIC Report of Investigation (ROI) Number 1044-81-CID034-55418-5C, dated 4 August 1981, and a copy of the DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), dated 4 October 1981, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army on 8 June 1976. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 36C (Wire System Installer).  He was honorably discharged on 29 March 1979 for the purpose of immediate reenlistment and executed a 4-year reenlistment in the Regular Army on 30 March 1979.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant’s records also show he served in Korea from 12 October 1976 to 5 October 1977.  His records further show he was awarded the Army Service Ribbon and the Good Conduct Medal.  His records do not show any achievements or commendations during his military service.

4.  Item 18 (Appointments and Reductions) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was reduced from SP4/E-4 to private first class (PFC)/E-3 on 30 January 1979 and from PFC/E-3 to private (PV1)/E-1 on 6 August 1980.  The facts and circumstances surrounding his reductions are not available for review with this case.

5.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 shows the following periods of lost time:

	a.  From 29 April 1979 to 2 May 1979, 4 days of civil confinement; 

	b.  From 6 August 1980 to 28 August 1980, 23 days of military confinement; and 

	c.  From 6 March 1981 to 12 March 1981, 7 days of absence without leave (AWOL).

6.  On 23 May 1981, while a member of C Company, 142nd Signal Battalion, 2nd Armored Division, Fort Hood, Texas, the applicant alleged that another Soldier fired one round of blank ammunition in the direction of his face with an M16 rifle that did not have a blank adapter.  As a result he sustained an injury to his left eye and was admitted to Darnell Army Community Hospital, Fort Hood, Texas.  The CID ROI concluded that the offense of aggravated assault did not occur as alleged and that the other Soldier was derelict in the performance of his duties.

7.  On 4 October 1981, the commander of the Soldier who accidently fired his weapon submitted a report of disciplinary or administrative action and indicated that the aggravated assault was unfounded and that a written reprimand/admonition was rendered to that Soldier for dereliction of duty.

8.  The applicant was honorably discharged on 4 May 1983 under the provisions of chapter 4 of Army Regulation (AR) 635-200 (Personnel Separations) for expiration of his term of service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued show he completed 6 years, 9 months, and 23 days of creditable honorable service and had 34 days of lost time.  Item 26 (Separation Code) of this form shows the entry “JBK” and Item 27 (Reenlistment Code) shows the entries “RE-3 and RE-3B.” 

9.  AR 635-200 provides the basic authority for the separation of enlisted personnel.  Chapter 4 of this regulation sets forth the policy for the separation of enlisted personnel at the expiration of their enlistment or fulfillment of service obligation.

10.  AR 635-5 (Separation Documents) provide that prior to discharge or release from active duty individuals will be assigned reentry codes, based on their service records or the reason for discharge.  AR 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces reentry codes, including RA RE codes.  An RE-3 applies to Soldiers who were separated, but did not meet reentry criteria at the time of separation.  An RE-3B applies to individuals who have time lost during their last period of service.  These individuals are considered ineligible for enlistment unless waiver is granted.  An RE-1 applies to persons completing their term of service (ETS) who are considered qualified to reenter the Army.

11.  AR 635-5-1 (Separation Program Designator) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD to be used for these stated reasons.  This regulation lists the following four SPD codes that can be assigned to members who are separated at ETS under the provisions of chapter 4, AR 635-200, based on the conditions indicated:  KBK, for members voluntarily discharged who are fully eligible to reenlist; MBK, for member voluntarily released from active duty (REFRAD) and transferred to the USAR who are fully eligible to reenlist; JBK, for members involuntarily discharged who are ineligible for, barred from, or otherwise denied reenlistment; LBK, for members involuntarily REFRAD and transferred to the USAR who are ineligible for, barred from, or otherwise denied reenlistment.  Table 2-3 of the regulation, in effect at the time, contained the SPD/RE code cross reference table.  This table identified the authorized RE code based on the SPD code assignment.  It confirmed that the following SPD codes assigned at ETS were authorized RE codes indicated:  KBK, RE-1; MBK, RE-1; JBK, RE-3; and LBK, RE-3.  

12.  AR 635-5-1 shows that the SPD of “JBK” as shown on the applicant’s DD Form 214 is appropriate for involuntary discharge when the narrative reason for discharge is “Completion of Required Active Service.” 




13.  Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay and provides separation pay formulas as authorized by Department of Defense Instruction 1332.29 dated 20 June 1991 and other Department of the Army guidance resulting from Public Law 101-510.  The circular also illustrates the various types of separation that are either eligible or ineligible for separation pay.  It states, in pertinent part, that separation pay is authorized for soldiers serving on active duty on 5 November 1990 who were involuntarily separated prior to completion of obligated service or who were denied continuation of further service.  To be eligible for separation pay and benefits, individuals must have served 6 or more years of active Federal service and had to sign a Department of the Army Form 7154-R (Agreement to Join Ready Reserve) for a period of not less than 3 years.

14.  Title 10, US Code, section 1174, states that "a regular enlisted member of an armed force who is discharged involuntarily or as a result of the denial of the reenlistment of the member and who has completed six or more, but less than 20 years of active service immediately before that discharge is entitled to separation pay competed under subsection (d) unless the Secretary concerned determines that the conditions under which the member is discharged do not warrant payment of such pay."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been entitled to separation pay. 

2.  The applicant was discharged from active duty on 4 May 1983 under the provisions of chapter 4 of AR 635-200 at the completion of his required active service.  The applicant's DD Form 214 shows he was discharged with a separation code of "JBK" and was assigned an RE code of RE-3 and RE-3B in accordance with the governing regulation in effect at the time.  

3.  At the time the applicant was discharged, it appears he was not fully qualified for reenlistment due to his previous history of lost time (AWOL and confinement). It also appears that a determination was made by Army officials that the conditions under which he was discharged did not warrant payment of separation pay.  Furthermore, there is no indication that he joined the Ready Reserve for a period of not less than 3 years.  Therefore, the applicant is not entitled to separation pay.

4.  With respect to the applicant's contention that  the Board should conduct an investigation and render a proper decision as to whether the decision regarding the shooting incident at Fort Hood, Texas, was the result of an aggravated assault vice a training accident, the applicant is reminded that although the ROI is a military record, the Army Board for Correction of Military Records (ABCMR) is neither an investigative body nor does it correct records solely for the purpose of establishing eligibility for other programs or benefits.  

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement. Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



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      _______ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080016724



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ABCMR Record of Proceedings (cont)                                         AR20080016724



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