IN THE CASE OF:	  

		BOARD DATE:  5 June 2012

		DOCKET NUMBER:  AR20110023806 


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 removal of a Memorandum for Record (MFR), subject: Administrative Separation (his social security number (SSN) and full name), dated 11 July 1995, from his Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  The MFR appears under the "disciplinary" tab of his official promotion board and leads the board to an impression that administrative actions were taken against him which resulted in his separation from active duty on 3 May 1993.

	b.  The MFR is inaccurate as a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 May 1993 was issued upon his honorable release from active duty by reason of expiration of term of service (ETS) and not disciplinary in nature.

	c.  Separation was through a European out in Germany and obviously records at the Human Resources Command (HRC), St. Louis, MO were not properly updated.

	d.  The MFR was issued in 1995 to correct outdated records there.

3.  The applicant provides:

* a self-authored letter, dated 23 March 2011
* his DD Form 214 for the period ending 3 May 1993
* an MFR issued by the U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN, subject:  Administrative Separation (applicant's SSN and full name), dated 11 July 1995
* email correspondence from the Army Soldiers Records Branch, HRC, Fort Knox, KY (9 February 2011) and a response from a U.S. Army Reserve (USAR) Human Resources Branch technician (11 February 2011)
* a letter from Army Review Boards Agency, dated 11 April 2011

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 USAR Delayed Entry Program (DEP) on 21 June 1988.  He was discharged from the USAR DEP on 3 October 1988 and he enlisted in the Regular Army (RA) in pay grade E-2 on 4 October 1988 for a period of 3 years.  He completed training and he was awarded military occupational specialty 43E (Parachute Rigger).  He was subsequently reassigned to Germany on 12 May 1989.

3.  On 23 July 1990, the applicant extended his enlistment for a period of
19 months to meet his service remaining requirement to complete his foreign service tour extension, with a new ETS date of 3 May 1993.

4.  On 3 May 1993, he was honorably released from active duty at his ETS with no time lost and he was transferred to a Reserve unit in Germany.  He completed 4 years and 7 months of creditable active service with no time lost.  His DD Form 214 shows he was honorably released from active duty under the provisions of 

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel),
chapter 4 (Separation for Expiration of Service Obligation) and assigned a separation code of LBK.

5.  An MFR, subject:  Administrative Separation (applicant's SSN and full name), dated 11 July 1995, states:

	a.  This Soldier [the applicant] was released from military control and dropped from the Army rolls, administrative, by authority of the Deputy Chief of Staff for Personnel (DCSPER) on 3 May 1993.

	b.  The Separation Program Designator (SPD) used to effect this separation was LBK.  Neither a separation order nor a DD Form 214 was received for this Soldier.

	c.  The Proponent Agency with DSCPER authority to direct this type of separation is the Personnel Service Support Division, The Adjutant General Directorate, U.S. Total Army Personnel Command (TAPC-PDO-PO), Alexandria, VA.

	d.  Specific instructions for this type separation are contained in Army Regulation 680-29 (Military Personnel, Organization, and Type of Transaction Codes), paragraph 1-73.

6.  On 3 September 1998, he was appointed in the USAR as a second lieutenant. He entered active duty for training on 26 March 2000.  He was honorably released from active duty at Fort Leonard Wood, MO on 25 July 2000 by reason of completion of required active service.  He was transferred back to a Reserve unit in Germany.  He is currently serving in an active Reserve status.

7.  Army Regulation 680-29, in effect at the time, prescribed the data code structure used to report and record personnel data.  Paragraph 1-73 applied to enlisted personnel and was used to identify the authority or reason for the member's separation from active duty.  When a DD Form 214 is not prepared (e.g. dropped from the rolls), the correct transaction change numbers (TCN) to use are prescribed by chapter 4, section V, of the regulation.

8.  Army Regulation 635-5-1 (SPD Codes), in effect at the time, prescribed the specific authorizes or reasons for separating Soldiers from active duty and the SPD codes.  The regulation specified the narrative reasons of SPD code of LBK was "Completion of Required Active Service."

9.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket (MPRJ), Career Management Individual File (CMIF), and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation, including the ABCMR.

10.  Army Regulation 630-10 (Absence Without Leave, Desertion, and administration of Personnel Involved in Civilian Court Proceedings), in effect at the time, establishes policies and procedures for reporting absences, establishes procedures for special category absentees, personnel dropped from the rolls, and the surrender of military personnel to civilian law enforcement authorities.  It states a Soldier will be dropped from the rolls of his or her unit when:

	a.  Absent without authority for 30 consecutive days.

	b.  The unit commander believes the Soldier voluntarily sought political asylum or is living in a foreign country apart from official duties or authorized leave.

	c.  The Soldier has joined the armed forces of a foreign country.

	d.  There is reasonable belief that the Soldier has left his or her duty station with the intent to avoid hazardous duty or important service, or intends to remain permanently absent.  An expressed intention not to return to a particular unit is not enough evidence to drop the Soldier from the rolls of the Army.

	e.  The Soldier fails to return to a unit from which he or she is AWOL after return to military control at another location or departs prior to the completion of administrative, judicial, or nonjudicial action for a previous absence.

	f.  He or she escapes from confinement.

	g.  Identified as a special category absentee.

	h.  A commissioned officer tenders his or her resignation and before notice of its acceptance, departs their post or proper duties without leave and with the intent to remain away therefrom permanently.

	i.  A member of the Armed Forces goes from or remains absent from his or her unit, organization, or place of duty with intent to remain away therefrom permanently.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the RA on 4 October 1988.  He was honorably released from active duty on 3 May 1993 at his ETS and he was transferred to a Reserve unit.  He was issued a DD Form 214 with an SPD of LBK and no time lost.

2.  However, on 11 July 1995, an MFR was issued stating the applicant was released from military control and dropped from the Army rolls on 3 May 1993 and not issued a DD Form 214.

3.  It is evident the applicant was appropriately issued a DD Form 214 for the period ending 3 May 1993 at the expiration of his term of service.  He was never reported as absent without leave or dropped from the Army rolls during his active military service.  Therefore, it appears the referenced MFR was issued in error and erroneously placed in the applicant's OMPF. 

4.  In view of the foregoing, the 11 July 1995 MFR should be removed from the applicant's OMPF.

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 

removing from the applicant's OMPF the Memorandum for Record, Subject:  Administrative Separation (applicant's SSN and full name), dated 11 July 1995.



      ____________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)                                         AR20110023806



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ABCMR Record of Proceedings (cont)                                         AR20110023806



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