BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100015532 


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:

* to be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* retroactive pay and allowances from 15 February 2000 to 1 September 2003
* payment for 52 days of accrued leave

2.  The applicant states:

* in 1999, he was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 67th Armor, in Germany
* in July 1999 a federal grand jury indicted him and he was returned to the United States and attached to U.S. Army Garrison Fort Dix, Fort Dix, NJ, pending trial
* he was convicted in U.S. District Court for the District of New Jersey and sentenced to 70 months of confinement, which began in September 2003
* his military pay stopped on 15 February 2000, but he was still capable of performing duty until 1 September 2003
* he was released from Federal custody on 13 February 2007
* he never received a DD Form 214 which has hindered his ability to find work



3.  The applicant provides:

* letter from the Office of the Chief of Legislative Liaison, Washington, DC, to a Member of Congress, dated 23 March 2010
* Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statement for the period 1-31 July 1999
* memorandum, dated 19 July 2000
* orders, dated 19 July 2000 and 27 July 1999

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 enlisted in the Regular Army on 3 June 1986.  He remained on active duty through continuous reenlistments.  Orders, dated 30 August 1995, show he was promoted to staff sergeant on 1 August 1995 in primary military occupational specialty 77F3O (Petroleum Supply Specialist).

3.  The available records do not contain a DD Form 214.

4.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records; however, it appears he was assigned to HHC, 1st Battalion, 67th Armor, in Germany.  Records for the U.S. District Court for the District of New Jersey show a Federal grand jury indicted him on 7 July 1999 for conspiring to sell or otherwise dispose of firearms to a convicted felon and aiding and abetting in the procurement of firearms by a convicted felon.  He was returned from Germany to the United States and attached to Headquarters, U.S. Army Garrison Fort Dix, Fort Dix, NJ, pending disposition of his charges.

5.  Court records show the applicant was convicted on 22 December 1999 of conspiring to sell or otherwise dispose of firearms to a convicted felon and aiding and abetting in the procurement of firearms by a convicted felon.  On 3 May 2000, he was sentenced to 60 months of confinement on count 1 and 70 months of confinement on count 2, to be served concurrently, and to be followed by 3 years of supervised release.  His projected release date is shown as 13 August 2008.

6.  A memorandum from Headquarters, U.S. Army Garrison Fort Dix, dated 19 July 2000, released the applicant from attachment, returning him to HHC, 1st Battalion, 67th Armor, in Germany.

7.  DFAS records show he was placed in confinement effective 27 December 1999 and discharged with the separation program designator (SPD) code "KFS" [in lieu of trial by court-martial] on 5 August 2005.

8.  The applicant provided a letter from the Office of the Chief of Legislative Liaison, Washington, DC, to a Member of Congress, dated 23 March 2010, which states, "Officials at the U.S. Army Human Resources Command advise that there is no record in Sergeant [Applicant]'s file to show what occurred after July 19, 2000, when he was released from attachment to Fort Dix, New Jersey."

9.  There is no evidence to show the applicant had 52 days of unpaid annual leave.

10.  Army Regulation 635-200 (Personnel Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  It provides:

	a.  in chapter 10, a Soldier who has committed an offense or offenses, the punishment for which under the Uniform Code of Military Justice and the Manual for Courts-Martial, 1998, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial; and

	b.  in chapter 5, paragraph 5-3, the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority.  Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the government will be at the Secretary's discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

11.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  It provides:

* the reason for discharge of "in lieu of trial by court-martial" based on Army Regulation 635-200, chapter 10, carries an SPD code of "KFS"
* the reason for discharge of "Secretarial Authority" based on Army Regulation 635-200, paragraph 5-3, carries an SPD code of "JFF"

12.  Army Regulation 635-200 states that prior to discharge or release from active duty, individuals will be assigned reentry eligibility (RE) codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, the U.S. Army Reserve, and the Army National Guard.  Table 3-1 includes a list of the RA RE codes.  RE-3 applies to Soldiers who are separated from their last period of service with a disqualification making them ineligible for enlistment without a waiver.

13.  The SPD/RE Code Cross Reference Table, dated 1 October 1999, shows that when the SPC code is "JFF," the Department of the Army directive authorizing the separation program or specific separation will provide the RE code.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states a DD Form 214 will be prepared for all personnel after completing 90 days or more of continuous active duty training, full-time training duty, or active duty support, and after completing initial active duty for training which resulted in the award of an military occupational specialty, even though the active duty was less than 90 days.  The regulation also states each block of the form must have an entry; when data is not applicable, enter "Not Applicable (NA)," "None," or hyphens, as appropriate.

15.  Table 1-12 (Unauthorized Absence and Other Lost Time – Effect on Pay and Allowances) of the Department of Defense Financial Management Regulation, volume 7A, states that when a member is absent from duty in confinement by civil authorities and the absence is not excused as unavoidable, the member is not entitled to pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he never received a DD Form 214 was carefully considered and appears to have merit.  Therefore, using the available records, a DD Form 214 will be prepared and provided to the applicant.

2.  The applicant was transferred from Germany to the United States and attached to Fort Dix for trial in U.S. District Court.  When he was convicted, Fort Dix should have revoked his attachment and assigned him to the Personnel Control Facility (PCF) for proper disposition.  The PCF should have initiated administrative separation action under the provisions of chapter 14 (misconduct), Army Regulation 635-200.  Instead, Fort Dix simply released him from attachment and transferred him back to Germany.

3.  DFAS, without a DD Form 214, had to close out the applicant's Master Military Pay Account.  DFAS records show he was placed in confinement on 27 December 1999 and apparently discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial on 5 August 2005.  It appears DFAS carried him in a confined by civil authorities status with no pay due from 27 December 1999.  There is no paperwork in the applicant's record to support that action and it seems DFAS simply filled the information void as best it could for the purpose of closing his account.

4.  The applicant's request for compensation for pay and allowances from 15 February 2000 to 1 September 2003 is without merit as it appears he was in confinement by civil authorities.  The governing regulation states that when a member is absent from duty in confinement by civil authorities and the absence is not excused as unavoidable, the member is not entitled to pay and allowances.  Therefore, there is no basis for granting his request for compensation for the period 15 February 2000 to 1 September 2003.

5.  Since there is no evidence of record and the applicant provided no evidence which shows he had 52 days of leave prior to his discharge, there is no basis for granting his request for compensation for 52 days of leave.

6.  The applicant's request for a DD Form 214 has merit.  Although it is likely that had either Fort Dix or his German unit initiated separation proceedings, he would indeed have been separated using board procedures and would likely have received something less than an honorable discharge, the fact is that no separation proceedings appear to have been initiated.  He is entitled to a DD Form 214.  

7.  As a matter of equity, the applicant's character of service will be shown as "honorable."  He would have been entitled to an administrative separation board in 1999 which would have determined his character of service based on his 
13-plus years of service.

8.  The equitable recourse is to characterize his service as honorable and his separation as having occurred via Secretarial Authority.  Therefore, his records should be corrected to show he was separated under the provisions of Army Regulation 635-200, paragraph 5-3, by reason of Secretarial Authority, with an RE code of "3" and an SPD code of "JFF."  His date of discharge will be established as of his date of conviction by civil authorities, 22 December 1999.

9.  The DD Form 214 will be prepared as complete as it will be possible to make it.  However, some items that would normally contain entries must, at this point in time, be shown as "NA" or some other negative entry (e.g., "0000 00 00").  If the applicant can provide evidence to complete an item, he may submit that evidence for consideration and amendment of the DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x__  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 preparing a DD Form 214 with the following information:

* item 1 (Name) – enter his last name, first name, and middle initial
* item 2 (Component) – enter "RA"
* item 3 (Social Security Number (SSN)) – enter his SSN
* item 4 (Grade, Rate, or Rank) – enter "SSG E-6"
* item 5 (Date of Birth) – enter "28 OCTOBER 1965"
* item 6 (Reserve Obligation Termination Date) – enter "0000 00 00"
* item 7a (Place of Entry onto Active Duty) – enter the address shown on his 28 October 1996 enlistment contract
* item 7b (Home of Record) – enter the address shown on his 28 October 1996 enlistment contract
* item 8a (Last Duty Assignment and Major Command) – enter "HEADQUARTERS, U.S. ARMY GARRISON FORT DIX, FORT DIX, NJ"
* item 8b (Station Where Separated) – enter "FORT DIX, NJ"
* item 9 (Command to Which Transferred) – enter "NA"
* item 10 (Servicemen Group Life Insurance) – enter "NA"
* item 11 (Primary Specialty) – enter "77F3O  PETROLEUM SUPPLY SPECIALIST"
* item 12a (Date Entered Active Duty This Period) – enter "3 JUNE 1986"
* item 12b (Separation Date This Period) – enter "22 DECEMBER 1999"
* item 12c (Net Active Service This Period) – enter "13  06  20"
* item 12d (Total Prior Active Service) – enter "0000 00 00"
* item 12e (Total Prior Inactive Service) – enter "0000 00 00"
* item 12f (Foreign Service) – enter "0000 00 00"
* item 12g (Sea Service) – enter "0000 00 00"
* item 12h (Effective Date of Pay Grade) – enter "1995  08  01"
* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – enter "National Defense Service Medal" and "Army Service Ribbon"
* item 14 (Military Education) – enter "NA"
* item 15 (Post-Vietnam Veterans' Educational Assistance Program and High School Grade or Equivalent) – enter "NO"
* item 16 (Days Accrued Leave Paid) – enter "NONE"
* item 17 (Dental Exam and Treatment Prior to Separation) – enter "NO"
* item 18 (Remarks) – enter "DATA HEREIN SUBJECT TO COMPUTER MATCHING WITHIN DOD OR WITH OTHER AGENCIES FOR VERIFICATION PURPOSES AND DETERMINING ELIGIBILITY OF COMPLIANCE FOR FEDERAL BENEFITS" and "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE"
* item 19a (Mailing Address After Separation)  – enter "NA"
* item 19b (Nearest Relative) – enter "NA"
* item 20 (Request for Forwarding Copy) – enter "No"
* item 21 (Signature of Soldier Being Separated) – enter "SOLDIER NOT AVAILABLE TO SIGN"
* item 22 (Official Authorized to Sign) – enter as appropriate
* item 23 (Type of Separation) – enter "DISCHARGE"
* item 24 (Character of Service) – enter "HONORABLE"
* item 25 (Separation Authority) – enter "ARMY REGULATION 635-200, PARAGRAPH 5-3"
* item 26 (Separation Code) – enter "JFF"
* item 27 (Reentry Code) – enter "3"
* item 28 (Narrative Reason for Separation) – enter "SECRETARIAL AUTHORITY"
* item 29 (Dates of Time Lost During This Period) – enter "UNKNOWN"
* item 30 (Soldier Requests Copy) – enter "YES"

2.  The Board further determined 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 compensation for pay and allowances from 15 February 2000 to 1 September 2003 or for 52 days of leave.



      __________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)                                         AR20100015532



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ABCMR Record of Proceedings (cont)                                         AR20100015532



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