BOARD DATE:	  March 2, 2010

		DOCKET NUMBER:  AR20090016050 


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, that his DD Form 214 (Report of Separation from Active Duty), for the period ending 27 October 1980, be corrected by:

   a.  adding 1 month and 28 days to his active duty service (for training completed at Fort Jackson, South Carolina);  

	b.  changing his rank and pay grade of private (PV2)/E-2 to a higher rank and pay grade; and 

	c.  changing his narrative reason for separation. 

2.  The applicant states, in effect, that the above errors occurred at the separation/transfer point when he out-processed from the military.  The applicant states that his training at Fort Jackson was counted as prior inactive service instead of active service.  He continues that his rank on his DD Form 214 should be higher and that his narrative reason for separation should be changed.

3.  The applicant provides no additional documents in support of this case.

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.  A DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States), dated 22 September 1979, shows the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 22 September 1979 for a period of 6 years.  On 19 November 1979, the applicant was discharged from the DEP for the purpose of enlisting in the Regular Army (RA).  He served 1 month and 28 days in the DEP.

3.  A DD Form 4, dated 20 November 1979, shows that the applicant enlisted in the RA on 20 November 1979 for a 3 year term of service.  

4.  A DA Form 3286-3 (Statements of Enlistment), dated 20 November 1979, shows the applicant elected the enlistment option to receive training of choice, military occupational specialty (MOS) 16B (Hercules Missile Crewmember).  The applicant acknowledged that if he did not meet the training requirements he would be reassigned in accordance with the needs of the Army.

5.  On 27 November 1979, the applicant was assigned to Fort Bliss, Texas.  He successfully completed basic training.   

6.  On 1 February 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 7 January 1980 through 9 February 1980.

7.  Headquarters, U.S. Army Air Defense Center and Fort Bliss Orders 4810, dated 10 March 1980, show the applicant was disqualified from MOS 16B training and assigned to the U.S. Army Training Center and Fort Jackson for training in MOS 76Y (Unit Supply Specialist). 

8.  Evidence of record shows the applicant was AWOL for the period 7 March through 13 March 1980.

9.  On 29 May 1980, the applicant was promoted to the rank and grade of 
PV2/E-2.

10.  Headquarters, U.S. Army Training Center and Fort Jackson Orders 109-214, dated 30 May 1980, show the applicant was reassigned back to Fort Bliss, Texas for retraining in MOS 16R (Short Range Air Defense Artillery Crewman) due to the academic failure of completing the requirements for MOS 76Y.

11.  On 29 August 1980, the applicant accepted NJP under Article 15, UCMJ, for failure to be at his appointed place of duty.

12.  On 23 September 1980, the applicant’s commander submitted a request to discharge him under the provisions of the Expeditious Discharge Program (EDP). The commander based his recommendation on the fact that the applicant was an academic failure and had already been reclassified once and had not demonstrated the ability to learn an MOS.

13.  On 23 September 1980, the applicant was advised of his rights and of the basis for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5, paragraph 5-31.  The applicant indicated that he would provide statements in his own behalf.  His statements are unavailable in his records.

14.  On 22 October 1980, the appropriate authority approved the recommendation to administratively separate the applicant and directed that he receive an honorable discharge under the provisions of Army Regulation 635-200 for failure to meet acceptable standards for retention.  On 27 October 1980, he was separated in the rank of PV2 after completing 10 months and 29 days of creditable active service with 9 days of lost time due to being AWOL.  

15.  The applicant's DD Form 214 for the period ending period 27 October 1980 covers his entire period of active duty service.  In item 12c shows the entry year(s) "00" month(s) "10" and day(s) "29," item 12e shows the entry year(s) 
"00" month(s) "01" and day(s) "28," item 24 (Character of Service) shows the entry "HONORABLE," item 26 (Separation Code) shows the entry "JGH," and item 28 (Narrative and Reason for Separation) shows the entry "Expeditious Discharge Program (EDP) Failure to maintain acceptable standards for retention." 

16.  There are no orders in the applicant's service personnel records advancing him to the rank and grade of private first class (PFC)/E-3 while he was on active duty.



17.  Army Regulation 140-1 (Mission, Organization, and Training) provides policy guidance on the mission, organization and training of the USAR.  It states in pertinent part that the USAR Control Group (Delayed Entry) consists of members enlisted under Army Regulation 601-210.  They are in a nonpay status and will not take part in Reserve training.  While assigned to the group, members are exempt from involuntary order to active duty except during a period of mobilization.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  In pertinent part at the time, it provided that members who completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential could be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. 

19.  Army Regulation 635-5-1 at that time identified separation code LGH as "Expeditious Discharge Program (EDP) failure to maintain acceptable standards for retention."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the active service on his DD Form 214 is incorrect and should be corrected by adding 1 month and 28 days.  Evidence of record shows he enlisted in the DEP on 22 September 1979 and entered active duty on 20 November 1979.  Soldiers in the DEP are not on active duty, this time is considered as inactive service.  Therefore, item 12e of his DD Form 214 ending 27 October 1980 appropriately shows his prior inactive service as
1 month and 28 days.

2.  The applicant contends that his DD Form 214 should show he held a higher grade than E-2 at the time of separation.  However, there is no evidence in his military records that show he was advanced to the grade of E-3 and he has not provided evidence that shows he was recommended for promotion to the grade of E-3.

3.  Records show the applicant was separated from active duty for failure to meet acceptable standards for continued military service.  Evidence of record shows he was an academic failure because he had not demonstrated the ability to learn an MOS.  He also received two Article 15s and had two instance of being AWOL during his enlistment.  The applicant had completed only 10 months and 27 days of active creditable service of his 3 year term of service.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the narrative reason for separation appears to have been, and is still warranted.

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  Therefore, it is concluded that the applicant’s discharge was proper and equitable.

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.



      _______ _   _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)                                         AR20090016050



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ABCMR Record of Proceedings (cont)                                         AR20090016050



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