BOARD DATE:	  16 October 2012

		DOCKET NUMBER:  AR20120006896 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* item 25 (Separation Authority) – Paragraph 4-29, Army Regulation
635-100 (Personnel Separations – Officer Personnel)
* item 26 (Separation Code) – SCC
* item 28 (Narrative Reason for Separation) – Reduction in authorized strength

2.  He states the "AAFMA caught the error while reviewing my file."  He thought the problem had been resolved, but no DD Form 215 (Correction to DD Form 214) was issued.

3.  He provides a memorandum by the Branch Chief, Fort Huachuca, AZ Transition Point, subject:  Request Issuance of DD Form 215, dated
15 December 1992.

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.  On 11 June 1966, the applicant entered active duty as a commissioned officer.

3.  On 3 April 1992, the U.S. Total Army Personnel Command (TAPC), Alexandria, VA, issued Orders S65-13, that retired the applicant from active service effective 31 August 1992 and placed him on the Retired List in the rank/grade of colonel (COL)/O-6.  The orders do not show the regulatory or statutory authority for his retirement.

4.  On 16 April 1992, the U.S. Army Intelligence Center, Fort Huachuca, issued Orders 75-48, that reassigned the applicant to the Fort Huachuca Transition Point for separation processing with a reporting date of 31 August 1992.  The orders show the authority for the action was Army Regulation 635-100 (Personnel Separations – Officer Personnel).

5.  On 31 August 1992, he was accordingly retired.  The DD Form 214 he was issued at the time shows he completed 26 years, 2 months, and 20 days of creditable active service.  It further shows in:

* item 23 (Type of Separation) – Retirement
* item 25 – Paragraph  4-14, Army Regulation 635-100
* item 26 – RBD
* item 28 – For length of service

6.  His record does not include a request for retirement endorsed through his chain of command.

7.  On 15 September 1992, the Branch Chief, Fort Huachuca Transition Point, sent a memorandum to TAPC requesting issuance of a DD Form 215 to correct three items on the applicant's DD Form 214:

* item 25 to read Paragraph 4-29, Army Regulation 635-100
* item 26 to read SCC
* item 28 to read Reduction in authorized strength

8.  The record is void of documentation showing TAPC acted on the request.  

9.  Army Regulation 635-100, in effect at the time of the applicant's retirement, provided the authority for the separation of commissioned and warrant officers from the Active Army.

	a.  Paragraph 4-13 stated a Regular or Reserve commissioned officer of the Army who had at least 20 years of active Federal service, at least 10 years of which had been active service as a commissioned officer, could, on his or her application, and at the discretion of the Secretary of the Army, be retired under the provisions of Title 10, U.S. Code, Section 3911.

	b.  Paragraph 4-14 stated a commissioned officer of the Regular Army who had at least 30 years of service could, on his or her application, and in the discretion of the President, be retired under the provisions of Title 10, U.S. Code, Section 3918.

	c.  Paragraph 4-29 stated a Regular Army officer who is to be removed from active duty under the provisions of Title 10, U.S. Code, chapter 60, and who on the date of removal is eligible for voluntary retirement under any provision of law will be retired in the grade and with the retired pay he or she would be eligible on his or her own application.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It shows Soldiers separated under the provisions of Army Regulation 635-100, chapter 4, by reason of "reduction in force" were to be assigned the SPD code of "SCC."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request for correction of his DD Form 214.

2.  The absence of a voluntary request for retirement in his record indicates he was retired as the result of a reduction in force as indicated in the memorandum to TAPC requesting corrections to his DD Form 214.  Further, the separation authority shown on his DD Form 214 is incorrect.  He had not served for 30 years, which means he could not have been separated under the provisions of Army Regulation 635-100, paragraph 4-14.


3.  It is unclear why TAPC did not act on the request; however, it would be appropriate to do so at this time.  The memorandum to TAPC accurately reflects the corrections that should be made with one exception.  The governing regulation indicates the proper narrative reason for his separation was "reduction in force" rather than "reduction in authorized strength."  

4.  In view of the foregoing, his DD Form 214 should be corrected as recommended below.

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:

	a.  delete from item 25 of his DD Form 214 the current entry and replacing it with the entry "Paragraph 4-29, Army Regulation 635-100";

	c.  deleting from item 26 of his DD Form 214 the current entry and replacing it with the entry " SCC"; and

	d.  deleting from item 28 of his DD Form 214 the current entry and replacing it with the entry "Reduction in force."



      __________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)                                         AR20120006896



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ABCMR Record of Proceedings (cont)                                         AR20120006896



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