IN THE CASE OF:	  

		BOARD DATE:	 26 July 2012 

		DOCKET NUMBER:  AR20120001158 


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, removal of the narrative reason for separation from his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he was offered an early release from his military service due to downsizing in the Army.  A week after he was discharged he enrolled in the University of Louisville.  He claims he entered service in the delayed entry/enlistment program (DEP) on 20 August 1991 which would give him
2 years of military service.  He further states he was told he would be eligible for Department of Veterans Affairs (VA) benefits and is requesting his record be changed in order to apply for a VA home loan.

3.  The applicant provides a copy of his DD Form 214 and University of Louisville Unofficial Transcript Report.

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 U.S. Army Reserve (USAR) DEP on 20 August 1991.  He was discharged from the USAR DEP on 30 December 1991 and he enlisted in the Regular Army on 31 December 1991 for a period of 6 years.  He completed training and he held military occupational specialty 91E (Dental Specialist).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant's record contains a DA Form 4126-R (Bar to Reenlistment Certificate) that shows he received a bar to reenlistment on 19 July 1993 for:

* receiving nonjudicial punishment for theft of property
* three instances of dishonored checks
* two letters of indebtedness
* failing three Army Physical Fitness Tests (APFT)

4.  In addition, his immediate commander stated the applicant’s conduct was detrimental to the maintenance of good order and discipline and brought discredit upon his unit and the U.S. Army.  He further stated the applicant demonstrated a lack of potential for further service.  The applicant was provided with a copy of the bar on 15 July 1993, but he elected not to submit a statement in his own behalf.  

5.  On 5 August 1993, the applicant submitted a DA Form 4187 (Personnel Action) requesting immediate separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-5b(1), by reason of inability to overcome a locally imposed bar to reenlistment.  On 12 August 1993, his company commander recommended approval of his request.

6.  Consistent with the immediate commander's recommendation, the separation authority approved the applicant's voluntary request on 13 August 1993 and directed his separation from service.

7.  On 20 August 1993, he was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 1 year, 7 months, and 20 days of creditable active service.  This form further shows in:

* item 6 (Reserve Obligation Termination Date) – "00  00  00"
* item 12a (Date Entered Active Duty This Period) – "91  12  31"
* item 12b (Separation Date This Period) – "93  08  20"
* item 12c (Net Active Service This Period) – "01  07  20"
* item 18 (Remarks) – "Delayed Entry Program:  910820-911230"
* item 25 (Separation Authority) – "Paragraph 16-5b, Army Regulation 635-200"
* item 26 (Separation Code) – "KGF"
* item 27 (Reenlistment Code) – "RE-3"
* item 28 (Narrative Reason for Separation) – "locally imposed bar to reenlistment"

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligation.  Paragraph 16-5b(1) of the regulation in effect at the time of his discharge stated that members who perceive that they will be unable to overcome a locally imposed bar to reenlistment may apply for immediate separation.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code KGF is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 16-5b, by reason of a locally imposed bar to reenlistment. 

10.  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 as follows:

* item 6 shows the completion date of the statutory military service obligation (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 – DEP time is credited in computing this date
* item 12a shows the date of entry on active duty
* item 12b shows the Soldier's transition/separation date
* item 12c shows all active service, less time lost

11.  Army Regulation 635-5 states DEP time which began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in 


item 12c.  However, it is creditable service for completing the statutory mandatory service obligation and will be entered in item 18.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received nonjudicial punishment, letters of indebtedness, and failed three APFTs which led his chain of command to initiate a bar to reenlistment action against him.  He perceived that he was unable to overcome this locally imposed bar to reenlistment and he voluntarily elected to request immediate separation.  The separation authority approved his request and he was ultimately discharged on 20 August 1993.

2.  His contention that he was offered an early release from his military service due to downsizing in the Army is without merit.  He was discharged under the provisions of Army Regulation 635-200, paragraph 16-5b, due to his belief that he could not overcome a locally imposed bar to reenlistment.  Absent the bar and his perception of his inability to overcome it, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his bar to reenlistment.  The only valid narrative reason for separation permitted under that paragraph is "locally imposed bar to reenlistment" with assignment of an SPD code of KGF, which are properly shown on his DD Form 214.

3.  He completed 1 year, 7 months, and 20 days of creditable active service which is appropriately shown on his DD Form 214.  There is no evidence he completed any other period of active service.  With respect to his DEP time:

	a.  He enlisted in the DEP on 20 August 1991 and he was discharged from the DEP on 30 December 1991.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes; however, it is creditable service for completing the statutory MSO and will be entered in item 18.

	b.  He enlisted in the Regular Army on 31 December 1991.  This is the date he entered active duty.  He was discharged from active duty on 20 August 1993.  Since he was discharged (complete severance from all military status gained by the enlistment) he no longer had an MSO.  Therefore, the entry in item 6 of his DD Form 214 appropriately shows no date.

4.  The ABCMR does not grant requests solely for the purpose of making an applicant eligible for veteran’s benefits.  Every case is individually decided based upon its merits.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

5.  In view of the foregoing, there is no 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)                                         AR20120001158



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ABCMR Record of Proceedings (cont)                                         AR20120001158



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