IN THE CASE OF:	  

		BOARD DATE:  3 July 2012

		DOCKET NUMBER:  AR20110024898 


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 records to show:

* The correct rank and pay grade
* The correct Reentry Eligibility (RE) Code
* Retirement as a master sergeant (MSG)/E-8

2.  The applicant states:

* He was told upon his release from active duty (REFRAD) that he would be transferred to the Individual Ready Reserve (IRR) and he would receive orders for physicals and promotions
* He never received any such orders and he now believes he should be retired as an MSG

3.  The applicant did not provide any evidence.

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.  Having had prior service in the U.S. Army Reserve (USAR) from 1 October 1977 to 1 April 1978 and the Army National Guard (ARNG) from 13 October 1978 to 28 February 1980, the applicant enlisted in the USAR for 6 years under the Delayed Entry Program (DEP) on 29 February 1980.  He was discharged from the USAR DEP on 23 March 1980 and he enlisted in the Regular Army (RA) on 24 March 1980 in the rank/grade of private (PV1)/E-1.

3.  He completed training and he was awarded military occupational specialty (MOS) 31V (Tactical Communications Systems Operator/Maintainer).

4.  He was advanced to private (PV2)/E-2 on 10 April 1980 and private first class (PFC)/E-3 on 13 September 1980.

5.  On 29 April 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 1 to 3 April 1981.  His punishment consisted of a reduction to PV2/E-2, a forfeiture of pay (suspended), and 7 days at the installation correctional control facility (CCF).

6.  On 11 May 1981, he departed his unit in an AWOL status and returned on
15 May 1981.

7.  On 20 May 1981, the suspended forfeiture of pay imposed on 29 April was vacated and ordered executed.

8.  On 26 May 1981, he again departed his unit in an AWOL status and returned on 27 May 1981.

9.  On 2 June 1981, he again accepted NJP under the provisions of Article 15, UCMJ for being AWOL from 11 to 15 May 1981 and 26 to 27 May 1981.  His punishment consisted of a reduction to PV1/E-1 (suspended for 90 days), extra duty, and restriction.

10.  On 15 June 1981, the suspension of the punishment to reduction to PV1/E-1 imposed on 8 June 1981 was vacated and the punishment was ordered executed.
11.  On 23 June 1981, the applicant’s immediate commander notified him that he intended to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)), by reason of lack of motivation, poor attitude, lack of self-discipline, substandard performance, and poor appearance.  The immediate commander noted the applicant's duty performance was characterized by behavior that rendered him repeatedly subject to punitive action.

12.  On 2 July 1981, the applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  He voluntarily consented to this discharge.  The applicant further acknowledged he understood if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life.  He also elected not to submit a statement in his own behalf.

13.  Subsequent to this acknowledgement, the applicant’s immediate commander recommended the applicant be discharged with a General Discharge Certificate.

14.  On 8 July 1981, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-31, by reason of failure to meet acceptable standards for continued military service.  He further directed the applicant be furnished a General Discharge Certificate and ordered his transfer to the IRR for the remainder of his service obligation.

15.  Orders 190-120, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, dated 9 July 1981, released the applicant from active duty effective 13 July 1981 and transferred him to the USAR Control Group (IRR) to complete his remaining service obligation.

16.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was released from active duty under the EDP in accordance with Army Regulation 635-200, paragraph 5-31, a general discharge.  He completed 1 year, 3 months, and 9 days of creditable active service.  This form further shows in:

* Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) - "PV1" and "E-1"
* Item 9 (Command to Which Transferred) - "USAR Control Group (Annual Training) RCPAC (Reserve Components Personnel and Administration Center), St. Louis, MO 63132"
* 
Item 12h (Effective Date of Pay Grade) - "81  06  15"
* Item 12i (Reserve Obligation Termination Date) - "83  10  05"
* Item 26 (Separation Code) - "LGH"
* Item 27 (RE Code) - "RE-3B"

17.  On 9 September 1981, he was issued a DD Form 215 (Correction to
DD Form 214) that corrected:

* Item 1 (Name) – "D----, G----- Kevin"
* Item 12c (Net Active Service this Period) - "01  03  10"
* Item 12i – "83  02  28"

18.  On 9 January 1984, he was issued a second DD Form 215 that changed his RE Code from RE-3B to "RE-3, RE-3B, and RE-3C."

19.  He was ultimately discharged from the USAR on 23 March 1986 upon completion of his military service obligation (MSO).

20.  There is no indication he performed any service subsequent to his REFRAD.

21.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had 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 may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

22.  Army Regulation 635-200, chapter 12, provides for retirement for length of service.  It states a Soldier who has completed 20 but less than 30 years of 

active federal service in the U.S. Armed Forces may be retired at his or her request.  The Soldier must have completed all required service obligations at the time of retirement.

23.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, states that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have:

	a.  attained age 60;

	b.  completed a minimum of 20 years of qualifying service; and

	c.  served the last 8 years of his or her qualifying service as a Reserve component (RC) Soldier.

During the period October 1991 to December 2001, the requirement to serve the last 8 years in an RC was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero (0) years.  A qualifying year is one in which the member earns a minimum of 50 retirement points.

24.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item preparation instructions for the DD Form 214.  The instructions state for:

* items 4a and 4b, enter active duty grade of rank and pay grade at time of separation
* item 9, enter the proper data from column C, table 2–2 of this regulation
* Item 12h, enter the effective date of promotion to pay grade
* Item 12i, enter the completion date of the statutory MSO incurred by a Soldier on initial enlistment in the Armed Forces; the MSO starts on the date of initial enlistment to include the DEP
* Item 27, for members discharged for cause (for example, under the trainee discharge program or for medical reasons), give the proper
RE code

25.  Army Regulation 635-5, Table 2-2, states when the member is released from active duty and transferred or returned to the USAR with no specific unit of assignment, the correct entry in item 9 of the DD Form 214 is "USAR Control 

Group (Annual Training or Reinforcement, as appropriate), RCPAC, St. Louis, MO 61312."

26.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the USAR.  Interim Change 12 of this regulation (applicable at the time of the applicant's discharge) prescribed basic eligibility for prior service applicants for enlistment.  Table A-2 included a list of the RA RE codes:

* RE-1, applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* RE-3 applied to those individuals who were not qualified for reenlistment, but their disqualification was waiverable
* RE-3B applied to those individuals who had time lost during their last period of service; they were considered ineligible for enlistment unless a waiver was granted
* RE-3C, applies to persons who have completed over 4 months of service who do not meet the basic eligibility pay-grade requirements of Army Regulation 601-210; chapter 2; or who have been denied reenlistment under the Qualitative Retention Process

27.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, provided for promotion of Soldiers in the IRR.  Section V (Promotion Criteria in the IRR) stated that promotion recommending authorities (at the time RCPAC, which later became the Army Reserve Personnel Center, or ARPERCEN) would verify a Soldier's eligibility for promotion prior to recommending a Soldier for promotion.  The Soldier must meet the criteria (satisfactory IRR participant, MOS qualified, physically fit, completed appropriate time in grade for the corresponding grade, and meet minimum civilian educational requirements).  Orders issuing authorities would also verify a Soldier's eligibility for promotion prior to publishing a promotion order.  Promotion from E-3 to E-4 and E-5 were based solely on meeting eligibility criteria, promotion to E-6 and E-7 were decided by a selection board by ARPERCEN, and promotion to E-8 and E-9 were decided by a selection board convened at Headquarters, Department of the Army.

28.  Army Regulation 135-178 (USAR Enlisted Administrative Separations) establishes policies governing the separation of enlisted Soldiers from the ARNG and the USAR.  The version in effect at the time required member of the Ready Reserve to undergo a medical examination every 5 years and execute and submit annually a certificate of physical fitness.
DISCUSSION AND CONCLUSIONS:

1.  With respect to his rank/grade:

	a.  The applicant accepted NJP under the provisions of Article 15 of the UCMJ on 29 April 1981.  His punishment consisted of a reduction to PV2/E-2.  He again accepted NJP on 2 June 1981.  His punishment consisted of a reduction to PV1/E-1 (suspended for 90 days).  However, on 15 June 1981, his suspended reduction to PV1/E-1 was vacated and his reduction was ordered executed.

	b.  There is no evidence of record and he provides none to show he held a higher rank/grade between the date his suspended reduction was vacated and the date of his REFRAD.  Accordingly, his DD Form 214 correctly shows his rank/grade of PV1/E-1 and his effective date of rank as 15 June 1981.

2.  With respect to his RE code:

	a.  The evidence of record shows he was initially assigned an RE Code of 3B to signify he was ineligible for reenlistment due to time lost.  His record clearly shows he was AWOL on multiple occasions.

	b.  He was also issued a DD Form 215 that added an RE Code of 3 to signify he was not qualified for reenlistment, but his disqualification was waivable and an RE Code of 3C that applied to persons who completed over 4 months of service who did not meet the basic eligibility pay-grade requirements of Army Regulation 601-210, chapter 2, or who were denied reenlistment.

3.  With respect to the transfer to the IRR, contrary to his contention that he was not issued an order transferring him to the IRR, the evidence of record clearly shows he was issued a separation order on 9 July 1981, ordering his REFRAD effective 13 July 1981 and transfer to the USAR Control Group (IRR).

4.  With respect to retirement, the applicant served in the USAR from 1 October 1977 to 1 April 1978, the ARNG from 13 October 1978 to 28 February 1980, USAR DEP from 29 February 1980 to 23 March 1980, and the RA from 24 March 1980 to 13 July 1981.  There is no evidence of record and the applicant did not provide any evidence that shows he met the criteria for retirement or served a qualifying period of service that would entitle him to retirement.

	a.  He would have needed to complete 20 years of active federal service to qualify for a regular retirement.  He completed less than 20 years of active federal service.
	b.  He would have needed 20 qualifying years of service to qualify for a non-regular retirement.  A qualifying year is defined as a year during which the member completed a minimum of 50 retirement points.  He completed less than 20 qualifying years of service for non-regular retirement.

5.  With respect to his contention that he was told he would be issued orders for promotion and physicals:

	a.  There is no evidence in the applicant's record and he provides none to show he was told he would receive orders for physicals and promotions.  However, even if he did, in order to receive an order for promotion, the applicant would have had to meet the requirements for and be recommended for promotion by the appropriate authority.

	b.  USAR Soldiers were required to undergo a physical every 5 years.  Given he was released from active duty in July 1981, it is reasonable to presume he underwent a separation physical and would not have needed another for at least
5 more years.  He was discharged from the USAR in March 1986, prior to
5 years from his REFRAD date.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110024898



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ABCMR Record of Proceedings (cont)                                         AR20110024898



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