IN THE CASE OF:	

		BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120009824 


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 her separation program designator code (SPD) be corrected.

2.  She states:

* her online search of her SPD code indicated that her SPD code was incorrect, since the SPD code "MGH" was for the warrant officer program
* she voluntarily left the military in 1996 in pay grade E3 after being court-martialed for disobeying a lawful order by failing to return to duty
* the leader for the Better Opportunity for Single Soldiers program could have explained to her sergeant the reasons she stayed late for a meeting 
* after her court-martial, she volunteered to the leave the Army in 1996
* is Army Regulation 635-200 (Personnel Separations), paragraph 16-5(b), the correct authority for the separation?

3.  She provides her DD Form 214 (Certificate of Release or Discharge from Active Duty) and a self-authored statement.

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 14 October 1993.

3.  Her record contains:

	a.  a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 9 May 1994, which shows she accepted nonjudicial punishment (NJP) under the provisions of Article 15, for failure to go at the time prescribed to her appointed place of duty on 26 April 1994.

	b.  ten DA Forms 4856 (General Counseling Form), dated 31 March to 18 September 1995, which show she was counseled for not reporting back to her unit at the end of her leave, lying to a noncommissioned officer, missing physical fitness formation, reporting late for duty, disobeying a lawful order, and rendering dishonored checks.

	c.  a DA Form 4126-R (Bar to Reenlistment Certificate), dated 22 September 1995, which shows that a local bar to reenlistment was imposed against the applicant.  The reasons given for the local bar to reenlistment were NJP under the UCMJ, Article 15, and three instances of rendering dishonored checks.  On 25 September 1995, the local bar to reenlistment was approved.  The applicant did not appeal the local bar to reenlistment.

	d.  a DA Form 4187 (Personnel Action), signed and dated by the applicant, which shows she requested early separation from the Army under the provisions of Army Regulation 635-200, paragraph 16-5(b), due to a locally imposed bar to reenlistment.  The applicant did not feel she was able to overcome the bar to reenlistment by her expiration term of service, which was 13 January 1997.

4.  On 8 May 1996, the approving authority approved the request for early separation under the provisions of Army Regulation 635-200, paragraph 16-5(b), for a locally imposed bar to reenlistment and directed the applicant be issued an honorable discharge characterization of service and transferred to the Individual Ready Reserve.



5.  On 4 June 1996, the applicant was honorably released from active duty after serving for a total of 2 years, 7 months, and 21 days.  The DD Form 214 she was issued shows in item:

	a.  25 (Separation Authority), Army Regulation 635-200, paragraph 
16-5b; 

	b.  26 (Separation Code), "MGH"; and

	c.  28 (Narrative Reason for Separation), non-retention on active duty.  

6.  References:

   a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-5 applies to personnel denied reenlistment and provides that Soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar, may apply for immediate discharge.  

   b.  Army Regulation 635-5-1 (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.  The SPD code of MGH is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 16-5b, for non-retention on active duty.
      
   c.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 26 will list the SPD code and item 28 will list the narrative reason for separation based on regulatory or other authority and can be cross-referenced with Army Regulation 635-5-1. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant requested early separation under the provisions of Army Regulation 635-200, paragraph 16-5(b), because she was unable to overcome the locally imposed bar to reenlistment.

2.  By regulation, the applicant's assigned SPD code of "MGH" was the proper code to assign enlisted members separated under the provisions of Army Regulation 635-200, paragraph 16-5(b), by reason of non-retention on active duty.  Therefore, there is no basis for changing her SPD code.


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)                                         AR20120009824





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ABCMR Record of Proceedings (cont)                                         AR20120009824



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