IN THE CASE OF:	  

		BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120020366 


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 items 4b (Pay Grade), 25 (Separation Authority), 26 (Separation Code), 27 (Reentry Code), and 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he volunteered for an early release in 1990 and he did not discover the errors on his DD Form 214 until he was recalled for service during Operation Desert Storm.  He had been reduced in grade during his earlier period of service but after 3 months he had his rank restored.  He was recalled to active duty in support of Operation Desert Storm but was released shortly after due to not being needed due to the short duration of that war.

3.  The applicant provides:

* page 1 of a DD Form 4 (Enlistment/Reenlistment Document), dated
19 November 1988
* a Western Union Mailgram from the U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO, dated 21 January 1991
* a U.S. Army Individual Ready Reserve recognition certificate in support of Operation Desert Storm
* his U.S. Army Honorable Discharge Certificate, dated 5 February 1991
* his DD Form 214 for the period ending 5 February 1991
* a DARP Form 249-2-E (Chronological Statement of Retirement Points), dated
9 February 1991
* Pages 1, 2, and 4 of his DA Form 2-1 (Personnel Qualification Record - Part II)

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 record contains a DD Form 214 for the period ending 17 September 1990 and 5 February 1991.  He did not specify which DD Form 214 he wanted corrected; therefore, these Proceedings will address both DD Forms 214.

3.  The applicant enlisted in the Regular Army (RA) on 28 November 1988.  He completed training and he was awarded military occupational specialty 13B (Cannon Crewmember).  He was subsequently assigned to duty in Germany.  He was advanced to the rank/grade of private first class (PFC)/E-3 on 1 October 1989.

4.  A DA Form 4430-R (Report of Results of Trial), dated 19 December 1989, shows the applicant was found guilty by a summary court-martial of:

* indecent assault
* adultery
* operating a privately owned vehicle without a U.S. Army Europe (USAREUR) 
* operating a vehicle while drunk (wife)

5.  The record does not contain any other documentation of the charges or court-martial action.  It does show the applicant's command directed an early return of his wife to the United States following the court-martial action.  This action is reported to have been connected to the last court-martial charge.

6.  On 13 July 1990, his unit commander initiated separation proceedings under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  He recommended the applicant receive an honorable discharge but not be placed in the Individual Ready Reserve upon separation.

7.  After consulting with military counsel, the applicant acknowledged the separation recommendation and elected not to provide any statement in his own behalf.
8.  On 7 September 1990, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being drunk and disorderly.  His punishment included reduction to the rank/grade of private (PV1)/E-1.

9.  The separation authority waived further rehabilitation efforts, directed the applicant receive an honorable discharge, and not be placed in the Individual Ready Reserve.

10.  The applicant was honorably separated on 17 September 1990.  The applicant's record does not contain a copy of his separation orders.

11.  The DD Form 214 he was issued at the time shows in:

* item 4a (Grade, Rate, or Rank) and 4b – PV1/E-1
* item 6 (Reserve Obligation Termination Date) – 18 November 1996
* item 9 (Command to Which Transferred) – U.S. Army Reserve (USAR) Control Group (Annual Training)
* item 23 (Type of Separation) – Relief from Active Duty
* item 25 – Army Regulation 635-200, chapter 13
* item 26 – LHJ
* item 27 – RE-3
* item 28 – Unsatisfactory Performance

12.  The applicant provides a 21 January 1991 Western Union Mailgram from ARPERCEN.  The mailgram contained Order Number M-12-237456, dated 20 January 1991, ordering him to active duty in support of Operation Desert Shield/Desert Storm with a reporting date of 31 January 1991.

13.  The available record does not include any documentation related to this period of service except the DD Form 214 for the period ending 5 February 1991.

14.  The DD Form 214 he was issued during this period of service shows in:

* item 4a and b – PV1/E-1
* item 6 – 00  00  00 (No Reserve obligation)
* item 23 – Discharge
* item 25 – Army Regulation 635-200, chapter 13
* item 26 – LHJ
* item 27 – RE-3
* item 28 – Unsatisfactory Performance

15.  A DD Form 215 (Correction to DD Form 214), dated 2 December 1992, corrected the DD Form 214 for the period ending 5 February 1991 to add to:

* item 13 (Decorations) – the National Defense Service Medal
* item 18 – the entry "Ordered to active duty in support of Operation Desert Storm/Desert Shield"
* item 18 – the entry "Individual completed period for which ordered to active duty for purpose of post-service benefits and entitlements"

16.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  It provides the following:

	a.  When a Soldier's conduct or performance becomes unacceptable, the commander will ensure that a responsible official formally notifies the Soldier of his/her deficiencies.  At least one formal counseling session is required before separation proceedings may be initiated for one or more of the reasons specified.  In addition, there must be evidence that the Soldier's deficiencies continued after the initial formal counseling.

	b.  The number and frequency of formal counseling sessions are discretionary.  Such factors as the length of time since the prior counseling, the Soldier's performance and conduct during the intervening period, and the commander's assessment of the Soldier's potential for becoming a fully satisfactory Soldier, must be considered in determining if further counseling.

	c.  Because military service is a calling different from any civilian occupation, a Soldier should not be separated when unsatisfactory performance is the sole reason for separation unless there have been efforts at rehabilitation.

	d.  Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.  Before initiating separation action against a Soldier, commanders will ensure that the Soldier has received adequate counseling and rehabilitation. 

17.  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 provides the following:


* Voluntary Discharge 
		Completion of Required Active Service		KBK		Note 1
* Voluntary Release from Active Duty (REFRAD) or transfer
		Completion of Required Active Service		MBK		Note 6
* Involuntary discharge
		Completion of Required Active Service		JBK		Note 7
* Involuntary REFRAD or transfer
		Completion of Required Active Service		LBK		Note 7
		Unsatisfactory Performance					LHJ		(no note)

* Note 1:  To be used for RA Soldier eligible to reenlist who is discharged on completion of enlistment.
* Note 6:  To be used for RA Soldier eligible to reenlist who is REFRAD on completion of enlistment and transferred to the Reserve Components to complete a military service obligation.  Also to be used for ARNGUS and USAR Soldier REFRAD on completion of required active service or period of which ordered to active duty.
* Note 7:  To be used for RA Soldier ineligible for, barred from, or otherwise denied reenlistment who is separated on completion of enlistment.

18.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment/reenlistment and processing of persons into the RA, USAR, and the Army National Guard (ARNG).  It provides the following:

	a.  an RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are fully qualified for enlistment if all other criteria are met; 

	b.  an RE-3 applies to Soldiers who are considered not fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable; and

	c.  the SPD/RE Code Cross-Reference Table indicates the pertinent SPD codes have the corresponding RE codes as follows:

* JBK – RE-3
* KBK – RE-1
* LBK – RE-3
* LHJ – RE-3
* MBK – RE-1 or 3



DISCUSSION AND CONCLUSIONS:

1.  The applicant's record does not contain and he has not provided any evidence he was advanced in grade following his reduction to PV1/E-1 on 7 September 1990.

2.  There is no evidence that the applicant's first period of active duty ended as a result of a voluntary early release under any reduction in force provision or regulation.

3.  The applicant's first period of service was marked with a number of incidents of misconduct.  He received a court-martial, an NJP, and he had several negative counselings.  These factors show his separation under Army Regulation 635-200, chapter 13 was proper and appropriate.

4.  It appears the reason for separation of unsatisfactory performance with an SPD code of LHJ and the corresponding RE-3 code on his DD Form 214 for the period ending 
17 September 1990 was appropriate.  Therefore, there is no error or injustice shown on this DD Form 214 and it should stand as completed.

5.  It is noted that the court-martial authority directed the applicant not be transferred to the USAR upon separation in 1990; however, his DD Form 214 shows he was transferred to the USAR and he was ordered to active duty pursuant to Presidential Executive Order for mobilization in support of Operation Desert Storm and he complied.

6.  The available record does not contain any documentation as to why the applicant was discharged 6 days after his recall to active duty.  In fact, the only documentation in the applicant's record concerning this period of service is his DD Form 214 and
DD Form 215.

7.  Normally a presumption of regularity would be invoked in the absence of evidence to show an error or injustice; however, it is unrealistic to assume that the applicant could or would have exhibited sufficient deficiencies in performance to warrant a second
chapter 13 discharge in less than 6 days.

8.  In order to justify a chapter 13 discharge, the in-processing command would have to have afforded him some type of counseling on his current performance, considered or justified why no rehabilitative opportunities would have been appropriate, and afforded him time to consult with counsel before being discharged under chapter 13.  This could not have occurred in less than 6 days.

9.  Furthermore, the DD Form 215 issued on 3 December 1992 states he completed the period for which he was ordered to active duty.  Such an entry would not be valid if he received an early separation under chapter 13.

10.  While there is insufficient evidence to clearly show why he was discharged after only 6 days, the preponderance of evidence indicates it could not have been under the stated regulation.

11.  There is no documentation to determine why he is shown as discharged and not released from active duty since he was recalled from the USAR.  There is a possibility that the discharge was a correction made based on the fact that he should not have been transferred to the USAR in 1990.

12.  As such, it would be appropriate at this time to correct his DD Form 214 for the period ending 5 February 1991 to conform to the entries appropriate to a release from active duty based on the reason stated on the DD Form 215, completion of the period for which he ordered to active duty.

13.  Evidence shows the applicant was reduced to PV1/E-1 on 7 September 1990 as a result of NJP action.  There is no evidence and the applicant did not provide any evidence that shows he was promoted to any higher grade following reduction.  Therefore, there is insufficient evidentiary basis for granting this portion of his request.

14.  Given the available information, the applicant's discharge on 5 February 1991 would have been involuntary and as such, the SPD code of JBK is the most appropriate separation code.

15.  Therefore, the applicant's DD Form 214 for the period ending 5 February 1991 should be corrected to show in:

	a.  item 25 – Army Regulation 635-200, chapter 4

	b.  item 26 – JBK

	c.  item 28 – Completion of required active service or period for which ordered to active duty

16.  The SPD code of JBK has a corresponding RE-3 code that is currently reflected on his DD Form 214 for the period ending 5 February 1991.  Therefore, there is no change required to item 27 of this DD Form 214.

17.  In view of the foregoing, it would be appropriate to issue the applicant a new
DD Form 214 reflecting these significant changes and incorporating the changes from the previously-issued DD Form 215.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  correcting the applicant's DD Form 214 for the period ending 5 February 1991 as follows:

		(1)  item 25 – Army Regulation 635–200, chapter 4;

		(2)  item 26 – JBK;

		(3)  item 28 – Completion of required active service or period for which ordered to active duty; and

	b.  issuing the applicant a new DD Form 214 for the period ending 5 February 1991 reflecting these changes and incorporating the changes from the DD Form 215, dated
2 December 1992.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to any further changes in excess of the above corrections.



      	_______ _   _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)                                         AR20120020366



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ABCMR Record of Proceedings (cont)                                         AR20120020366



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