IN THE CASE OF:	  

		BOARD DATE:	  9 December 2009

		DOCKET NUMBER:  AR20090002770


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his character of service as honorable.

2.  The applicant states, in effect, he retired honorably and his DD Form 214 is incorrect.

3.  The applicant provides copies of four DD Forms 214, his Certificate of Retirement, his retirement orders, and his notification of eligibility for retired pay at age 60 in support of his application.

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 record contains Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, Orders 113-0044, dated 22 April 2004, which released the applicant from active duty after returning from deployment and completing his required active duty.

3.  On 17 May 2004, the applicant was issued a DD Form 214 which shows in item 28 (Narrative Reason of Separation) the entry "completion of required active service."  It further shows in item 24 (Character of Service) the entry "under other than honorable conditions" and in item 26 (Separation Code) the entry "LBK."

4.  There is no evidence of record which shows the applicant was processed for an involuntary separation as a result of his conduct or performance.

5.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 4-5 provides that a Soldier being separated upon expiration of enlistment or fulfillment of a service obligation will be awarded a character of service of honorable.

6.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) identifies the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214 at the time of separation.  It shows, in pertinent part, that SPD code "MBK" should be used when enlisted personnel are voluntarily released from active duty and the narrative reason of an enlisted Soldier's separation is "completion of required active service."

7.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  In pertinent part, it states that the honorable characterization of service is appropriate when the quality of the Soldier's service generally meets the standards of acceptable conduct and performance of duty for military personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is warranted when significant negative aspects of the Soldier's conduct or performance outweigh positive aspects of the Soldier's military record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DD Form 214 he was issued at the time of his release from active duty on 17 May 2004 incorrectly shows the character of his service and separation code was carefully considered and was found to have merit.

2.  The evidence of record shows that the applicant was released from active duty on 17 May 2004 after returning from deployment and completing his required active duty period of service.  Further, there is no evidence of record which indicates that the applicant was separated involuntarily for a reason that would warrant a characterization of service of "under other than honorable conditions."  As a result, it would be appropriate to grant the requested relief and correct the applicant's record to show he was honorably separated on 17 May 2004.

BOARD VOTE:

____x____  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214, dated 17 May 2004, by:

	a.  deleting the current entry in item 24 and adding the entry "honorable,"

	b.  deleting the current entry in item 26 and adding the entry "MBK," and

	c.  issuing the applicant a corrected DD Form 214 showing these corrections.



      ____________x_____________
                 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)                                         AR20090002770



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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