IN THE CASE OF:	  

		BOARD DATE:	  …  11 JUNE 2009

		DOCKET NUMBER:  AR20090000773 


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, in effect, removal of two DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice [UCMJ]) from his Official Military Personnel File (OMPF).  He requests his military occupational specialty (MOS), MOS title, separation authority, separation code, reenlistment code, and narrative reason for separation be changed or upgraded on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 14 September 1987.  He also requests that his local bar to reenlistment be removed and that, in effect, the Board conduct an investigation into the circumstances of his arrest.

2.  The applicant states, in effect, that he received two Article 15s while on active duty and that he recently learned Article 15s should be removed from a Soldier's record upon leaving the duty station where the Article 15 was imposed.  He further states that his DD Form 214 is incorrect and asks that his MOS and MOS title be changed to "13F3X3H, Fire Support Sergeant/Coordinator."  He states that items 25 (Separation Authority), 26 (Separation Code), and 27 (Reenlistment Code) should be changed.  He also states that the entry in item 28 (Narrative Reason for Separation) should be changed to more favorable terms and he would like the "local bar to reenlistment" entry removed due to the fact that at the time he was a single parent and that he requested to leave the Army due to his parenting responsibilities.  He emphasizes that he "was not kicked out!"  Lastly, he asks that the Army Board for Correction of Military Records carefully review and investigate how he was treated by the military police, to include their method for suspecting that he was drunk while 

driving.  He states that he did not receive a blood alcohol test, a breathalyzer test, or any field sobriety test, and that the military police treated him with excessive force causing him head trauma.  He concludes by stating he recently retired from civilian law enforcement and he knows the proper procedures for apprehending a suspected drunk driver and those procedures were not followed by the military police.   

3.  The applicant provides the following documents in support of his application:

	a.  Multiple military letters of appreciation, military training certificates, a picture, and an excerpt from an unknown source for the Combat Infantryman Badge;

	b.  Town of Laurel Police Department, Laurel, Delaware, award of the Combat Action Award and the Wounded in Action Award for the incident on 4 July 1991 with accompanying newspaper article; and the Honorable Service Award for his participation in the Delaware Special Olympics;

	c.  Multiple training certificates showing successfully completion of the police academy training, fire arms training, fire support training, first aid training, highway safety and drug interdiction training between the years 1989 to 2006;

	d.  Degree completion certificates from Ashwood University showing he was conferred a Bachelor of Arts degree in Criminal Justice Administration and a Doctor of Arts in Theology and Biblical Counseling; 

	e.  Degree completion certificate from the American College of Metaphysical Theology showing he was conferred a Doctor of Philosophy degree and ordained a minister;

	f.  Multiple letters of commendation to include a letter from a U.S. senator; and 

	g.  a civilian resume and self-authored statement.

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 military personnel record shows that he initially enlisted in the Regular Army (RA) on 17 February 1976 for a 3-year period.  He successfully completed basic combat and advanced individual training and was awarded MOS 13F (Fire Support Specialist).  He subsequently reenlisted on 22 January 1979 and was honorably discharged on 14 September 1987.  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 6 (Military Occupational Specialties) that he held MOS 13F, effective 21 March 1978 and that he held MOS 13B (Cannon Crewman), effective 9 July 1981. 

4.  Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, Orders 195-210, dated 14 July 1981, awarded the applicant the secondary MOS of 13B, effective 9 July 1981.

5.  On 26 August 1982, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for, on or about 15 July 1982, operating a vehicle while drunk and resisting lawful apprehension by military police.  Records show he was a staff sergeant (SSG)/E-6 at the time he accepted this nonjudicial punishment, that he declined trial by court-martial, and that he further declined to appeal his nonjudicial punishment.  Part III (Attachments and/or Comments) of the applicant's DA Form 2627 shows the commander imposing the UCMJ action directed that the original copy of the DA Form 2627 be filed in the Soldier's OMPF.  This is the only nonjudicial punishment document filed in the applicant's OMPF and available for the Board's review.

6.  United States Army Regional Personnel Center, Grafenwoehr, Germany, Orders 11-18, dated 14 January 1985, awarded the applicant primary MOS 13F3H3000 and withdrew primary MOS 13F3OX00, effective 6 December 1984.  
7.  On an unknown date, the applicant's company commander imposed a local bar to reenlistment.  The facts and circumstances surrounding the local bar to reenlistment are not available for the Board's review.

8.  On 10 December 1986, the applicant's company commander reviewed the applicant's bar to reenlistment and did not recommend removal.  

9.  On 4 September 1987, the applicant voluntarily requested discharge from the Army under the provisions of paragraph 16-5b of Army Regulation 635-200 (Personnel Separations - Enlisted Separations).  He stated that he requested separation before his expiration of his term of service for personal convenience and that he understood he would not be permitted to enlist at a later date.

10.  On 8 September 1987, the applicant's company and intermediate commanders recommended that he be separated, that he receive an honorable discharge, and that he not be transferred to the Individual Ready Reserve (IRR). 

11.  On 8 September 1987, the approval authority approved the applicant's request for separation, directed the issuance of an honorable discharge certificate, and further directed that the applicant not be transferred to the IRR.

12.  On 14 September 1987, the applicant was honorably discharged.  The DD Form 214 issued during this period shows he was discharged under the provisions of chapter 16 of Army Regulation 635-200, the separation code was "KGF," the reenlistment code was "RE-4," and the narrative reason for separation was "local bar to reenlistment."  The DD Form 214 issued this date also shows that the applicant had completed 8 years, 7 months, and 23 days of net active service this period and that he had 2 years, 11 months, and 4 days of prior active service.  Item 11 (Primary Specialty Number, Title, and Years and Months in Specialty) shows he held MOS 13F3X30, Fire Support Specialist, for 9 years and 6 months and that he held MOS 13B3O, Cannon Crewman, for 11 years and
3 months.  

13.  On 25 October 1995, the applicant applied to the Army Discharge Review Board (ADRB) requesting that the reason for his discharge on his DD Form 214 for the period ending 14 September 1987 be changed. 

14.  On 10 February 1997, the ADRB determined that the applicant was properly and equitably discharged.  The ADRB denied the applicant's request to change the character and/or reason for his discharge.  At that time the applicant was advised that the ADRB operates on a 15-year statute of limitations from the date of discharge stating he must reapply within this time frame for reconsideration of his application that was denied.

15.  The applicant provided extensive documentation to show that he successfully served as a civilian police officer and completed numerous training programs in fire support, first aid, highway safety, and drug interdiction procedures between the years 1989 and 2006.  He also provided numerous 

letters of appreciation from former military supervisors and commanders, civilian supervisors, and a U.S. Senator.  The highest awards he received in the performance of his civilian duties as a police officer were the Town of Laurel Police Department Combat Action Award and Wounded in Action Award in 1991.

16.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Chapter 7 contains guidance on appeals for removal of unfavorable information from the OMPF.  It states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, thereby warranting its alteration or removal from the OMPF.  It also provides the provisions that allow the transfer of a DA Form 2627 from the performance portion to the restricted portion of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF pursuant to Army Regulation 600-37.  It further stipulates that appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

17.  Army Regulation 27-10 (Military Justice), paragraph 3-37(b-1), in effect at the time, states that for Soldiers in pay grade E-4 and below (prior to punishment) and who have been in the Army less than 3 years as of the date punishment is imposed, the original Article 15 will be filed in local nonjudicial punishment files.  Such locally filed originals will be destroyed at the end of the
2-year period from the date of imposition of punishment or on the Soldier’s transfer to another General Court-Martial Convening Authority (GCMCA), whichever occurs first.  For all other Soldiers, the imposing commander will forward the original DA Form 2627 for filing in the Soldier's OMPF.  The decision to file the DA Form 2627 in the performance section or the restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  This filing decision is final and will be indicated in item 5 of DA Form 2627. 

18.  Army Regulation 27-10, paragraph 3-41, provides in pertinent part, that records of nonjudicial punishment presently filed in either the performance or restricted section of the OMPF will remain so filed, subject to other applicable regulations.  Records of nonjudicial punishment imposed prior to 1 November
1982 and forwarded on or after 20 May 1980 for inclusion in the OMPF will be filed in the performance section.

19.  Army Regulation 27-10, paragraph 3-43, currently in effect, contains guidance on the transfer or removal of records of nonjudicial punishment from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

20.  Army Regulation 601-280 (Total Army Retention Program) governed bars to reenlistment at the time in question.  Essentially, this regulation provided that a Soldier could be barred from reenlisting based on specific incidents of substandard performance and that any commander in the Soldier’s chain of command may initiate a bar to reenlistment.  Procedurally, the regulation required that a bar to reenlistment certificate be prepared and referred to the Soldier so he or she can submit a statement on his or her own behalf.  Each member of the chain of command must then endorse the bar to reenlistment to the proper approval authority.  The regulation required that the approval authority for Soldiers with less than 10 years active Federal service at the date of bar initiation must be personally approved by the first commander in the rank of lieutenant colonel or above in the Soldier's chain of command, or the commander exercising Special Court-Martial Convening Authority, whichever is in the most direct line to the Soldier (unless this is the same commander who initiated the action).  The personal signature of the approving or disapproving authority is required.  The regulation also provided that the Soldier may appeal the bar to reenlistment and that final approval of appeals will be at least one approval level higher than the original bar approval authority. 

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-5 applies to personnel denied reenlistment and provides that Soldiers who receive Department of the Army imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar, may apply for immediate discharge.  Incident to the request, the member must state that he understands that recoupment of unearned portions of any enlistment or reenlistment bonus is required and that later enlistment is not permitted.

22.  Army Regulation 635-200 further states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  

23.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, provides guidance on the eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. 
Army Reserve (USAR).  Table 3-6 included a list of the RA RE codes and provides that an RE Code of 4 applies to Soldiers who are separated from their last period of service with a nonwaiverable disqualification.  Soldiers with an RE Code of RE-4 are ineligible for enlistment.

24.  The Separation Program Designator (SPD)/RE Code Cross Reference Table, in effect at the time, shows that the appropriate RE code for the SPD code of "KGF" was RE-3 or RE-4.  A Soldier issued a bar to reenlistment under the Department of the Army Qualitative Manage Program would be assigned an
RE-4 code; whereas, a Soldier issued a local bar to reenlistment (less than 18 years of active service) would be assigned an RE-3 code.

25.  Army Regulation 635-5 (Separation Documents) further provides for the entry of the titles of all MOSs served in for at least 1 year in item 11 of the DD Form 214 and include for each MOS the number of years and months served.  For time determination 16 days or more count as a month.  Time spent in basic combat and advanced individual training are not counted.  The source document used to prepare the DD Form 214 is the Soldier's DA Form 2-1 and available permanent military orders.  For enlisted Soldiers specify the first 5 characters of the primary MOS, which includes the 3 characters of the MOS, the fourth character of skill and grade level in the MOS, and the fifth character of a special qualification identifier.  Enter an "O" when not applicable. 

26.  Army Regulation 611-201 (Personnel Career Management Fields and Military Occupational Specialties) prescribes the policies and procedures for the career management of enlisted Soldiers.  Additional Skill Identifiers (ASI) identify specialized skills that are closely related to and are in addition to those required by the MOS.  Further, an ASI is authorized for use only with a designated MOS and will be listed in each specification for such MOS.  Additional skill identifiers include operation and maintenance of specific weapons systems and equipment that are too restricted in scope to comprise an MOS.  Table 2-13F-2 within this regulation identifies MOS 13F3O with its applicable ASI as X3 and its accompanying title is Fire Support Sergeant.

27.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The guidance further states that the ABCMR is not an investigative body and will decide cases based on the evidence of record. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his record of nonjudicial punishment should be removed from his OMPF; that his bar to reenlistment be removed; that his narrative reason for separation, separation code, and RE code be changed to more favorable terms; and that his MOS and MOS title be corrected on his DD Form 214. 

2.  Regulatory guidance for the award of MOS 13F shows the appropriate entry for fire support sergeant is 13F3OX3.  In addition, since the applicant was a staff sergeant, the proper title is Fire Support Sergeant.  In light of this guidance, the applicant is entitled to have his DD Form 214 with a separation date of 14 September 1987 corrected to show "MOS 13F3OX3, Fire Support Sergeant."

3.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

4.  The applicant accepted nonjudicial punishment and chose not to appeal the decision of the commander imposing punishment.  The commander formally stated in writing that the nonjudicial punishment would be permanently filed in the applicant's OMPF since he was a staff sergeant/pay grade E06 and not in the unit local files.  

5.  The applicant did not provide compelling evidence to show that the nonjudicial punishment was improperly imposed in 1982.  As the Board is not an investigative body, it will not address the allegations of impropriety by the military police personnel that arrested the applicant nearly 30 years ago for suspected driving under the influence.  However, it is noted that the applicant's nonjudicial punishment was for both driving while drunk and resisting lawful apprehension by the military police. 

6.  The evidence of record shows the applicant received a local bar to reenlistment imposed by his company commander and that it was procedurally reviewed in accordance with regulatory guidance.  At a point in time, the applicant personally requested separation from active duty due to his belief that 
he could not overcome his locally imposed bar to reenlistment.  He was discharged accordingly by the appropriate authority and his discharge document, namely the DD Form 214, accurately reflects the facts and circumstances of his discharge.

7.  The evidence of record confirms that the applicant’s RE code was determined based on the fact that he was separated under the provisions of chapter 16 of Army Regulation 635-200 due to a local bar to reenlistment.  Therefore, the only valid narrative reason for separation permitted under that paragraph is "local bar to reenlistment" and the appropriate SPD code is "KGF."  However, for locally imposed bars to reenlistment, the associated RE code is RE-3.  It appears that the applicant was erroneously issued an RE-4 code in lieu of an RE-3 code that he should have received.  Therefore, it would be appropriate at this time to correct item 27 of his DD Form 214 to show "RE-3." 

8.  The applicant's significant personal achievements and self-sacrifices made by the applicant after his discharge from the U.S. Army as a civilian law enforcement officer and a minister have been duly noted.  However, these achievements are not sufficient to warrant changing a properly constituted record.  

9.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the processing of the nonjudicial punishment and his separation processing.  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 has failed to submit evidence that would satisfy the requirement to remove the two DA Forms 2627 from his OMPF.  He also failed to provide evidence to show that he was not properly separated.  Therefore, he is not entitled to have his DD Form 214 corrected to show a different separation authority, separation code, and narrative reason for separation. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  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:

   a.  deleting from item 11 of the applicant's DD Form 214 for the period ending 14 September 1987 the current entry "13F3X30, Fire Support Specialist" and replacing it with the entry "13F3OX3, Fire Support Sergeant;"

	b.  deleting from item 27 of the applicant's DD Form 214 for the period ending 14 September 1987 the entry "RE-4" and replacing it with the entry "RE-3."

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 correcting the applicant's record by removing two DA Forms 2627, or changing his separation authority, separation code, and narrative reason for separation on his properly issued DD Form 214 with a separation date of 14 September 1987.




      _______________________
               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)                                         AR20090000773



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ABCMR Record of Proceedings (cont)                                         AR20090000773



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