IN THE CASE OF:	  

		BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20120018276 


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 the issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) to account for his active military service from 14 February 2001 through 13 February 2004.

2.  The applicant states:

	a.  He was never correctly out-processed after going on transition leave in 2004; therefore, he was never issued a DD Form 214.  He kept all documents that will help produce a DD Form 214 for him.  

	b.  There is no warrant for his arrest according to the National Crime Database; U.S. Army Human Resources Command (HRC); Fort Carson, CO; Fort Hood, TX; and a Member of Congress, who was also involved in his case.  He has been trying to acquire his DD Form 214 for nearly 9 years through all of these agencies and the Department of Veterans Affairs (VA) and National Personnel Records Center (NPRC).

	c.  He enlisted in the Regular Army (RA) on 14 February 2001 and he was discharged on 13 February 2004, as shown on his enlistment and clearing paperwork.  For some reason he was told his discharge date was changed to April 2004 by Fort Carson, where his unit is currently stationed and because he was absent without leave (AWOL) before being ordered to Iraq in 2003.  He obtained back pay from the Army up until April concluding his 3-year enlistment.  

	d.  His Leave and Earnings Statements (LESs) state he was assigned to a unit he never knew he was assigned to.  His unit at Fort Hood had always been the 1st Battalion, 10th Calvary, 4th Infantry Division, during the entire period of his enlistment.

	e.  He ETS'd (expiration of term of service) from Fort Hood with five other Soldiers from his original unit, but didn't come home until the next year.  All documents he has sent to different agencies, which he was told to send, are enclosed.  The only paperwork the NPRC has on him is the dates and conclusions of his AWOL.

	f.  His clearing papers are for a regular honorable discharge because of serving in Iraq.  His group orders to Iraq and his orders to clear without orders are also included and the transition commander's statement.  HRC has just about all of this information as well, but they told him they can't help him anymore.  He feels the Board is the last resort to help him obtain his DD Form 214.  He would like his DD Form 214 for VA benefits and his GI Bill.

3.  The applicant provides:

* 2001 DD Form 4/1 (Enlistment/Reenlistment Document)
* DA Form 3286-63 (Statement for Enlistment – U.S. Army Training Enlistment Program)
* DD Form 2366 (Montgomery GI Bill Act of 1984 (MGIB))
* Orders 635-04 and 087-12
* DA Form 31 (Request and Authority for Leave)
* Individual Redeployment Authorization
* Redeployment memorandum
* Post-Deployment Health Assessment memorandum
* Redeployment-Deployment and Reconstitution Checklist
* Center Clearance Briefing Procedures as of 4 November 2003 worksheet
* Change of clearing status memorandum
* Transition Center Worksheet
* Clearance Without Orders memorandum
* Reserve Components Career Counselor Interview Record
* two letters from the Chief, Adjutant General Directorate, West, HRC
* letter from NPRC
* No Action Taken memorandum
* letter from the Chief, Army Personnel Records Division, HRC
* five LESs
* four email transmissions between himself and Fort Carson and Fort Hood

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's available records show he was born on 17 November 1982. He enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) at Harrisburg, PA, Military Entrance Processing Station (MEPS) on 27 January 2001.  He listed his home of record as 7xx Wxxxx Oxx Road, Sxxxxxx, PA, 17579.  He was discharged from the DEP, 18 days later, on 13 February 2001.

3.  He enlisted in the RA in pay grade E-1 on 14 February 2001 for 3 years.  He completed training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He attained the pay grade of E-3 on an unknown date.

4.  His service records contain a document showing he was reported in an AWOL status on 18 December 2002 and dropped from the Army rolls as a deserter on 18 January 2003.  He returned to military control on 18 March 2003: 

   a.  A DA Form 4187 (Personnel Action), dated 18 January 2003, shows his duty status was changed from AWOL to dropped from the rolls on the same date. His rank/grade is listed as PVT/E-1.

	b.  A DD Form 563 (Deserter/Absentee Wanted by the Armed Forces), dated 3 March 2003, shows he was reported AWOL on 19 December 2002 and he remained continuously so absent until 18 January 2003.  The form also states he was assigned to Troop B, 1st Battalion, 10th Cavalry, 4th Infantry Division, Fort Hood, TX.  His rank/grade is listed as PVT/E-1.

	c.  A DD Form 616 (Report of Return of Absentee), dated 18 March 2003, shows he surrendered to military authorities at Fort Hood on 18 March 2003.



5.  The documents he provided include:

   a.  Five copies of his LESs for 1-31 March 2001, 1-31 January 2002,              1-31 January 2003, 1-31 January 2004, and 1-31 August 2004 which show he received base pay between those periods.  His pay grade is listed as E-1.  His January 2004 LES shows he was still in the Army on that date and he held the pay grade of E-1.  His August 2004 LES shows he was separated on 15 March 2004 and he was paid 53.5 days of unused leave. 

	b.  Orders 635-04 issued by Headquarters, 4th Infantry Division, on 4 February 2003, directing his unit's temporary change of station to the Central Command (CENTCOM) and return to Fort Hood, for a period of 179 days beginning on or about 5 February 2003.

	c.  Orders 087-12 issued by Headquarters, 4th Infantry Division, on 27 March 2003, amending Orders 029-021 to change the beginning (effective) date from 5 February to 5 April 2003.

	d.  A DA Form 137-2-R (Installation Clearance Record), which shows he was clearing for the purpose of ETS.  The form does not contain his signature nor unit and battalion clearances signatures.  His last unit of assignment on this form was Troop C, 1st Squadron, 10th Cavalry, 1st Cavalry Division, Forces Command (FC).  His rank/grade is shown as PVT/E-1.

   e.  A Retention – Separation Survey wherein he stated that the Army was not for him.  He listed his rank as PFC and his MOS as 11C (Indirect Fire Infantryman).
   
   f.  A Transition Center Worksheet, dated 26 November 2003, wherein he listed his ETS date as 13 February 2003 and his mailing address after his separation and the mailing address of his nearest relative as JJW, 7xx Wxxxx Oxx Road, Sxxxxxxx, PA 17579.  He also indicated he served in Southwest Asia from 20 March 2003 to 20 October 2003.

   g.  An Individual Redeployment Authorization memorandum, dated 12 September 2003, signed by his brigade commander, which shows he was authorized to depart CENTCOM in order to return to the continental United States (CONUS) to terminate service.  His rank is listed as PVT.

   h.  A DA Form 31, dated 12 September 2003, which shows he was approved to take transition leave from 24 December 2003 to 13 February 2004.  
   
   i.  A Redeployment memorandum, dated 27 September 2003, signed by the Squadron Adjutant, which stated he was departing theater 90 days prior to his ETS date of 13 February 2004.  His departure date from theater is listed as 2 October 2003. 

   j.  A Post-Deployment Health Assessment he completed on 17 October 2003. He stated he arrived in theater on 20 March 2003 and departed on 22 October 2003. 

   k.  A Redeployment-Deployment and Reconstitution Checklist, which shows he cleared the Soldier Readiness Processing Center in November 2003.

   l.  A Change of clearing status memorandum, dated 4 November 2003, which shows he was not being chaptered from the Army and his ETS was 13 February 2004.  His rank is shown as PFC.

   m.  A Clearance Without Orders memorandum, dated 17 December 2003, which shows he was authorized to clear the installation without orders.  The memorandum also stated his transition leave would start on 24 December 2003.

   n.  A Reserve Components Career Counselor Interview Record which he completed on 7 January 2004.

   o.  A letter from the Chief, Adjutant General Directorate, West, HRC, dated 1 August 2008, advising his Member of Congress that the applicant's available records did not contain a DD Form 214.  The record indicated he has began a period of AWOL on 19 December 2002, surrendered to military authorities on 18 March 2003, was returned to military control and assigned to the 502nd Personnel Service Battalion, Fort Hood, TX.  Information received from Fort Knox, KY, Deserter Information Point indicated no separation history on file and the applicant's name was not found in their location system.  The applicant's request for a DD Form 214 couldn't be granted until he returned to his assigned unit, underwent transition processing, and was processed.  At that time he would be issued a DD Form 214, discharge orders, and an appropriate certificate.

   p.  A letter from the Chief, Army Personnel Records Division, HRC, dated 14 August 2012, wherein he was advised that the HRC had determined his case should be reviewed by the ABCMR as his characterization of service still needed to be determined.  As a result, they could not issue a DD Form 214.

6.  A staff member of the Defense Finance and Accounting Service (DFAS), Indianapolis, IN, verified the applicant received hostile fire/imminent danger pay and combat zone tax exclusion for service in Kuwait/Iraq from 31 March 2003 through 17 October 2003 and he was AWOL 19 December 2002 through 18 March 2003.  DFAS was unable to provide his last day of service.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  

   a.  Paragraph 2-1 states a DD Form 214 will be prepared for Active Army Soldiers on termination of active duty service by reason of administrative separations (included retirement and ETS).

	b.  Dates of time lost will be subtracted from Net Active Service This Period (block 12c) if the lost time was not "made good."  If the ETS was adjusted as a result of lost time and the Soldier served until ETS, the lost time was
“made good.”  Lost time under 10 USC 972 is not creditable service for pay, retirement, or veteran’s benefits.  However, the Army preserves a record (even after time is made up) to explain which service between date of entry on active duty (block 12a) and separation date (block 12b) is creditable service.  For enlisted Soldiers, show inclusive periods of time lost to be made good under 10 USC 972.

	c.  When a Soldier is discharged in absentia or physically unable to sign, enter "SOLDIER NOT AVAILABLE TO SIGN” in Item 21.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) prescribes the policies for the orderly administrative separation of Soldiers for a variety of reasons.  

	a.  Paragraph 1-23 states when a Soldier is held in service after period of service expires, the Soldier will be retained for the convenience of the Government.  A Soldier en route to the United States from overseas as a casual will not be separated until arrival at destination.  

	b.  Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization will be inappropriate.

	c.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	d.  Paragraph 4-1 states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.  A Soldier being separated under this paragraph will be awarded a character of honorable, unless in an entry-level status and the service is uncharacterized.

   e.  A Soldier being separated for the convenience of the government will be awarded a character of service of honorable or general, or an uncharacterized description of service if in an entry-level status.  

	f.  Paragraph 5-3 states Secretarial separation authority is normally exercised on a case-by-case basis and may be used for a specific class or category of Soldiers.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for those stated reasons.  The SPD of "KFF" is appropriate on the DD Form 214 when the narrative reason for voluntary discharge is "Secretarial Authority" and the authority for discharge is Army Regulation 635-200, chapter 5-3.

10.  Army Regulation 600-8-22 (Military Awards) states:

	a.  The National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined.  

	b.  The Army Service Ribbon is awarded to members of the U.S. Army for successful completion of initial entry training.  

	c.  The Iraq Campaign Medal is awarded to members who have served in direct support of Operation Iraqi Freedom (OIF).  The area of eligibility encompasses all the land area of the country of Iraq, the contiguous water area out to 12 nautical miles, and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 through 31 December 2011.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  He served in Iraq during the following approved campaigns:

* Liberation of Iraq (19 March 2003-1 May 2003)
* Transition of Iraq (2 May 2003-28 June 2004)

   d.  Global War on Terrorism Service Medal (GWOTSM) is authorized for award to members of the Armed Forces of the United States who have participated in Global War on Terrorism operations outside of the areas of eligibility (AOE) designated for award of the Global War on Terrorism Expeditionary Medal, Afghanistan Campaign Medal, or Iraq Campaign Medal.  All Soldiers on active duty on or after 11 September 2001 to a date to be determined having served 30 consecutive days or 60 nonconsecutive days are authorized the GWOTSM.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been issued a DD Form 214 for his active duty has been noted.  The available evidence shows he enlisted in the RA on 14 February 2001.  He was AWOL from 19 December 2002 through 18 March 2003, a period of 2 months and 27 days.  HRC stated that upon his return to military control, he was reassigned to the 502nd Personnel Service Battalion, Fort Hood, TX.  

2.  On 12 September 2003, he submitted a leave request for the period 24 December 2003 to 13 February 2004.  The 4th Infantry Division issued a memorandum on 12 September 2003 authorizing his return to CONUS to terminate service.  The 4th Infantry Division issued a memorandum on 27 September 2003 redeploying him from Iraq to Fort Hood, TX.  On 17 December 2003, he was granted authorization to clear the installation without orders.  By all accounts it appears he returned to Fort Hood and departed on authorized leave.  There is no evidence he was processed for separation at that time.  It appears he departed on transition leave through his separation date – without outprocessing and without separation orders. 

3.  In 2008, in response to a Member of Congress's inquiry about his DD Form 214, HRC stated they could not locate a DD Form 214 for him and he couldn't be issued a DD Form 214 until he returned to his assigned unit, underwent transition processing, and was processed.  In August 2012, HRC advised him to apply to the ABCMR and stated that his characterization of service still needed to be determined.

4.  Pertinent regulations show an Active Army Soldier, such as the applicant, would be issued a DD Form 214 upon completion of service.  He is entitled to the issuance of a DD Form 214 for his period of service from 14 February 2001 through 13 February 2004, which the evidence supports was his last official date of duty, a period of 3 years of active service less 2 months and 27 days of lost time for a net service of 2 years, 9 months, and 3 days.

5.  DFAS confirms the applicant served in Kuwait/Iraq from 31 March 2003 through 17 October 2003, a period of 6 months and 18 days.  Therefore, Item 18 of his DD Form should show the entry, "SERVICE IN KUWAIT/IRAQ FROM 20030331-20031017."

6.  Although some documents, mostly when he filled them out, listed his rank as PFC, all official documents including his pay records listed his rank and grade as PVT/E-1.  In the absence of a promotion document to PFC/E-3, it appears he held the rank/grade of PVT/E-1 on his date of separation. 

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 issuing the applicant a DD Form 214 for the period 14 February 2001 through 13 February 2004 and showing in:

* Item 1 (Name (Last, First, Middle)) – as shown on his enlistment contract
* Item 2 (Department, Component or Branch) – RA
* Item 3 (Social Security Number) – as shown on his enlistment contract
* Item 4a (Grade, Rate, or Rank) – PVT
* Item 4b (Pay Grade) – E-1
* Item 5 (Date of Birth) – 19821117
* Item 6 (Reserve Obligation Termination date) – 0000-00-00
* Item 7a (Place of Entry Into Active Duty) – Harrisburg, PA
* Item 7b (Home of Record) - 7xx Wxxxx Oxx Road, Sxxxxxxxx, PA, 17579
* Item 8a (Last Duty Assignment and Major Command) - Troop C, 1st Squadron, 10th Cavalry, FC
* Item 8b (Station Where Separated) – Fort Hood, TX
* Item 9 (Command to Which Transferred) – N/A
* Item 10 (SGLI Coverage Amount) - $400,000
* Item 11 (Primary Specialty) – 11C (Indirect Fire Infantryman - 2 Years 5 Months)
* Item 12a (Date Entered AD This Period) – 2001-02-14
* Item 12b (Separation Date This Period) -  2004-02-13
* Item 12c (Net Active Service This Period) – 0002-09-03
* Item 12d (Total Prior Active Service) – 0000-00-00
* Item 12e (Total Prior Inactive Service) – 0000-00-00
* Item 12f (Foreign Service) – 0000-06-18
* Item 12h (Effective Date of Pay Grade) – 2004-02-13
* Item 13 (Decorations, Medals, Badges, Citations, and Campaigns Ribbon Awarded or Authorized) adding:

* National Defense Service Medal
* Army Service Ribbon
* Global War on Terrorism Service Medal
* Iraq Campaign Medal with two bronze service stars

* Item 14 (Military Education) – None
* Item 15a (Member Contributed to Post-Vietnam Era Veterans' Educational Assistance Program) – No
* Item 15b (High School Graduate or Equivalent) – Yes
* Item 16 (Days Accrued Leave Paid) – 53.5
* Item 17 (Member Was Provided Complete Dental Examination and All Appropriate Dental Services and Treatment within 90 Days Prior to Separation) – No
* Item 18 (Remarks) the following entries:

* PERIOD OF DELAYED ENTRY PROGRAM:  20010127-20010213
* SERVICE KUWAIT/IRAQ FROM 20030331-20031017
* MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE

* Item 19a (mailing Address After Separation) - 7xx Wxxxx Oxx Road, Sxxxxxxx, PA 17579
* Item 19b (Nearest Relative) JJW, 7xx Wxxxx Oxx Road, Sxxxxxxx, PA 17579
* Item 20 (Member Requests Copy 6 Be Sent to "PA" Director of Veterans Affairs "Yes"
* Item 21 (Signature of Member Being Separated) - SOLDIER NOT AVAILABLE TO SIGN
* Item 23 (Type of Separation) – Discharge
* Item 24 (Character of Service) - Honorable
* Item 25 (Separation Authority) – AR 635-200, PARA 5-3
* Item 26 (Separation Code) – KFF
* Item 27 (Reentry Code) – 3
* Item 28 (Narrative Reason for Separation) – Secretarial Authority
* Item 29 (Dates of Time Lost During This Period) – 20021219-20030318
* Item 30 (Member Requests Copy 4) - JPC



      _______ _   _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)                                         AR20120018276





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ABCMR Record of Proceedings (cont)                                         AR20120018276



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