DOCKET NUMBER:  AR20120021857 


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 retirement orders and a DD Form 214 (Certificate of Release or Discharge from Active Duty) to account for his active military service from 26 August 1983 to 31 December 2003.

2.  The applicant states at the time of his retirement, he attended the 82nd Airborne Division retirement ceremony and he received his retirement award, certificate, and flag.  He did not outprocess the finance office at the time during his transition; so, a retirement account was never established.  

3.  Per telephone conversation with a staff member of the Board on 13 June 2013, the applicant stated that he was never issued a separation order.  He outprocessed his unit, received his award, and went home.  He did not explain why he has not questioned the lack of retired pay in the past 10 years. 

4.  The applicant was contacted by the staff member, again on 20 June 2013, in a second attempt to confirm the exact date of his separation.  He did not answer. 

5.  The applicant provides his enlistment contract, awards and decorations, retirement application, retirement award and certificates, evaluation reports, certificates of training, and other documents from his official service records. 

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 XX November 1965.  He enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) at the Baltimore, MD, Military Entrance Processing Station (MEPS) on 26 August 1983. He listed his home of record as 1X3 Riverxxxx Road. Baltimore, MD, 21221.  He was discharged from the DEP, 2 months and 27 days later, on 22 November 1983. 

3.  He enlisted in the Regular Army on 23 November 1983.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 16S (Patriot/Missile Crewmember Course) on 24 April 1984. 

4.  He attended and completed the one station unit training Basic Military Police Course, from 25 March 1987 to 21 May 1987.  He was awarded MOS 95B (Military Police) on 27 May 1987.  He also appears to have been awarded MOS 11B (Infantryman) in or about January 1990.  

5.  He served through multiple reenlistments, including reenlistments on 23 January 1987, 5 January 1990, 11 February 1993, 27 October 1995, 12 August 1996, and an indefinite reenlistment on 17 February 2000.

6.  He served in a variety of stateside or overseas assignments, and he was promoted to sergeant/E-5 on 7 August 1987 and staff sergeant (SSG)/E-6 on 11 April 1994. 

7.  He completed the following training courses (of one or more weeks in duration)

* Patriot/Missile Crewmember Course, 7 weeks, 1984
* Heavy Expanded Mobility Tactical Truck (HEMTT), 1 week, 1984
* Primary Leadership Development Course, 4 weeks, 1986
* Headstart German Language Program, 1 week, 1986
* Nuclear, Biological, and Chemical (NBC) NCO Course, 2 weeks, 1986
* Basic Military Police Course, 8 weeks, 1987
* Republic of Korea Ranger Program, 1 week, 1987
* Junior Leader Maintenance Orientation Course, 1 week, 1988
* Unit Armorer Course, 2 weeks, 1989
* Alcohol and Drug Coordinator Course, 1 week, 1989
* Basic Airborne Course, 3 weeks, 1990
* Basic Noncommissioned Officer Course, 7 weeks, 1991
* Combat Lifesaver Course, 1 week, 1994
* Defense Packaging of Hazardous Material for Transportation, 2 weeks, 1995
* Instructor Development Course, 3 weeks, 1995
* Equal Opportunity Representative Course, 3 weeks, 1995

8.  He completed the following periods of foreign service/deployments:

* Korea, 29 June 1987 to 24 June 1988 (11 months and 27 days) 
* Panama, 4 August 1990 to 23 July 1993 (2 years, 11 months)
* Korea, 24 January 1998 to 25 January 1999 (1 year and 2 days)
* Albania, 20 April 1999 to 12 June 1999 (1 month and 24 days)
* Kosovo, 12 June 1999 to 22 September 1999 (3 months and 11 days)
* Sinai, Egypt, 7 July 2000 to 14 January 2001 (6 months and 18 days)

9.  He was awarded or authorized the following awards, decorations, and badges, for/by Permanent Orders (PO):

* Army Commendation Medal, meritorious service 15 February 1999 to 30 September 2001, PO Number 337-13, issued by Headquarters, 3rd Brigade, 82nd Airborne Division on 3 December 2001
* Multinational Force and Observers Medal for service in Sinai, Egypt, from July 2000 to January 2001
* Army Commendation Medal, meritorious service, from 18 July 2000 to 13 January 2001, PO Number 24-3, issued by Headquarters, 3rd Brigade, 82nd Airborne Division on 24 January 2001
* Authorized to accept and wear the German Armed Forces Parachutist Badge in Bronze, by memorandum, issued by Headquarters, 82nd Airborne Division, on 8 May 2000
* Army Commendation Medal, meritorious achievement, from 19 April to 21 September 1999, PO Number 327-34, issued by Headquarters, 3rd Brigade, 82nd Airborne Division on 23 November 1999
* Army Commendation Medal, meritorious service, from 25 January 1998 to 21 January 1999, PO Number 350-09, issued by Headquarters, 2nd Brigade, 2nd Infantry Division, on 16 December 1998
* Army Commendation Medal, meritorious achievement, from 7 January 1997 to 26 January 1998, PO Number 344-04, issued by Headquarters, U.S. Army Combined Arms Support Command and Fort Lee, on 
10 December 1997
* Meritorious Service Medal, meritorious service, from 18 September 1993 to 31 December 1996, PO Number 201-039, issued by Headquarters, U.S. Army Combined Arms Support Command and Fort Lee, on 
31 December 1996
* Army Achievement Medal, meritorious achievement, from 1 December 1993 to 30 November 1995, PO Number 191-005, issued by Headquarters, U.S. Army Combined Arms Support Command and Fort Lee, on 30 November 1995
* Army Commendation Medal, meritorious service, from 9 August 1990 to 26 July 1993, PO Number 38-9, issued by Headquarters, 193rd Infantry Brigade, Fort Clayton, Panama, on 23 June 1993
* Army Achievement Medal, meritorious service, from 1 April 1992 to 15 February 1993, PO Number 78-7, issued by Headquarters, 193rd Infantry Brigade, Fort Kobbe, Panama, on 24 February 1993
* Expert Infantryman Badge, from 15 to 22 February 1992, PO 30-7, issued by Headquarters, U.S. Army South, Panama, on 12 March 1992
* Army Achievement Medal, meritorious service, from 2 June 1989 to 5 March 1990, PO Number 14-1, issued by Headquarters, 1st Cavalry Division, Fort Hood, TX, on 26 February 1990
* Army Achievement Medal, meritorious service, from 24 March to 6 April 1988, PO Number 077-58, issued by Headquarters, 516th Personnel Service Company, on 15 April 1988
* Army Achievement Medal, meritorious achievement from 1 January 1985 to 31 December 1986, PO Number 14-10, issued by Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, TX, on 23 January 1986
* Multiple awards of the Army Good Conduct Medal, last one 6th Award, by PO 011-11, issued by Headquarters, 82nd Soldier Support Battalion, Fort Bragg, NC, on 11 January 2002
* Meritorious Service Medal, meritorious service from 23 November 1983 to 30 November 2003, by PO 210-3, issued by Headquarters, 82nd Airborne Division, on 28 July 2003

10.  He submitted a memorandum, dated 13 November 2002 that shows, on that date, having completed 19 years and having received permanent change of station (PCS) assignment instructions, he submitted a request for voluntary retirement, in lieu of complying with PCS orders.  He requested an effective date of retirement date of 30 November 2003 and he indicated he will have completed 20 years of active service on that date.  He also indicated:

* he intended to take 85 days of transition leave from 18 August 2003 to 30 November 2003; he had an approved leave form for this period
* he would be enrolled in full Survivor Benefit Plan coverage if he failed to elect otherwise in writing before his retirement
* his address on retirement is "32xx Fiscxx Avenue, Hopewell, VA  28360" 

11.  His company and battalion commanders endorsed the request for retirement by recommending approval.  However, the request is not endorsed by his brigade or division commander.  Additionally, there is no indication his request was processed or approved by the installation (Fort Bragg) or the U.S. Army Human Resources Command (HRC), possibly because he did not have 19 years and 6 months of service at the time he submitted this request.  

12.  He was issued the Army Chief of Staff Certificate of Retirement and the Presidential Certificate of Appreciation.  He also participated in a retirement ceremony at Fort Bragg, NC, on 31 July 2003. 

13.  According to his ARPC Form 249-E (Chronological Statement of Retirement Points), he served in the Regular Army from 26 August 1983 to 31 August 2003.  It is unclear what his disposition was between 31 August 2003 and 30 November 2003 (the date he requested to retire on).  

14.  An email, dated 30 January 2013, from the Defense Finance and Accounting Service (DFAS) - Indianapolis, IN, states the applicant's active Federal service was from 23 November 1983 to 1 October 2003.  The DFAS official stated she was unsure if the applicant had enough time for retired pay.  It is unclear if he was paid for leave. 

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

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) prescribes the policies for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 12 states a Soldier who has completed 20 but less than 30 years of active federal service (AFS) in the U.S. Armed Forces may be retired (Title 10, U.S. Code, section 3914) at his or her request.  The Soldier must have completed all required service obligations at the time of retirement.  
17.  Paragraph 12-4 of Army Regulation 635-200 states Soldiers who have completed 20 but less than 30 years of AFS and who have completed all required service obligations are eligible, but not entitled, to retire upon request.  Soldiers who have completed 19 or more years of AFS may apply for retirement. The request must be made within 12 months of the requested retirement date.  

18.  Paragraph 12-9a (Retirement in lieu of PCS) states in:

	a.  Paragraph 19-a, Soldiers having 19 years, 6 months or more of AFS when notified of permanent change of station may request a retirement date.  

		(1)  If the Soldier elects to retire, the retirement application (DA Form 2339) must be submitted and approved within 30 days of receipt of official alert notification of permanent change of station.

		(2)  The retirement date will not be later than 6 months from the date of notification, or the first day of the month following the month in which 20 years of active Federal service is completed, whichever is later.  All service obligations must be fulfilled not later than the approved retirement date.

		(a)  Soldiers electing to retire under this provision will be required to retire immediately upon attaining retirement eligibility.

		(b)  The retirement application (DA Form 2339) will be submitted through command channels to Commander, U.S. Army Human Resources Command (HRC), in Alexandria, VA, at the time, now at Fort Knox, KY.  This action must be submitted and approved with 30 days of official notification of permanent change of station.

		(c) All service obligations resulting from promotion, training or similar action must be completed before 20 years AFS.

		(d)  Soldiers will have at least 20 years AFS at ETS.

	b.  When a Soldier cannot fulfill the service obligations by the requested retirement date, the retirement authority will return the Soldier’s application.

	c.  Applications for retirement in lieu of PCS that are approved will not be withdrawn, nor will the retirement date be changed.  The Soldier must retire on the approved retirement date. 

	d.  The retirement authority will set up procedures to ensure written acknowledgment by the Soldier of the reassignment notification.  Written acknowledgment will be used as confirmation of receipt of assignment instructions.

	e.  Assignment instructions or orders will be deleted only after request for retirement is approved. 

	f.  Soldiers who request retirement in lieu of PCS will normally remain at the same duty station in an authorized position.  Utilization will be in the best interest of the Army.  A move may be necessary for such reasons as deletion of position, reorganization, or disciplinary problems.  

19.  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 "RBD" is appropriate on the DD Form 214 when the narrative reason for voluntary retirement/sufficient service for retirement and the authority for discharge is Army Regulation 635-200, chapter 12.

20.  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 Global War on Terrorism Service Medal is authorized for award to members of the Armed Forces of the United States who have participated in the Global War on Terrorism operations on or after 11 September 2001 to a date to be determined.  The general area of eligibility (AOE) encompasses all foreign land, water, and air spaces outside the fifty states of the United States and outside 200 nautical miles of the shores of the United States in operations approved by the Secretary of Defense.  

	d.  The Kosovo Campaign Medal is awarded to members of the Armed Forces of the United States who, after 24 March 1999, participated in or served in direct support of Operation Allied Force (24 March 1999 through 10 June 1999); Operation Joint Guardian (11 June 1999 through a date to be determined); Operation Allied Harbour (4 April 1999 through 1 September 1999); Operations Sustain Hope/Shining Hope (4 April 1999 through 10 July 1999); Operation Noble Anvil (24 March 1999 through 20 July 1999); or Kosovo Task Forces Hawk (5 April 1999 through 24 June 1999), Saber (31 March 1999 through 8 July 1999), or Hunter within the Kosovo Air Campaign or Kosovo Defense Campaign areas of eligibility (AOE).  

	e.  The Parachutist Badge is awarded to a member who has satisfactorily completed the prescribed proficiency tests while assigned or attached to an airborne unit or the Airborne Department of the Infantry School or has participated in at least one combat parachute jump.

	f.  The Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant appears to have been ordered on a PCS move in or around the summer months of 2002.  On 23 November 2002, he submitted a request for voluntary retirement in lieu of PCS.  His company and battalion commanders endorsed his request.  However, his brigade, division, and installation commanders did not.  Additionally, there is no evidence his request was approved by HRC, the approval authority for such type of retirement.  

2.  On the surface, it appears he was qualified for retirement, given the request for retirement, the endorsements by his company and battalion commanders, the retirement award, and his participation in a retirement ceremony.  However, this is not the case:

	a.  First, at the time he submitted his request for retirement, he was on PCS assignments instructions.  Therefore, he did not have the option to request retirement in lieu of PCS.  That option is only authorized to Soldiers who had completed 19 years and 6 months at the time they are alerted to PCS.  He had completed just over 19 years of service.

	b.  Second, the approval authority for Soldiers who request retirement in lieu of PCS is the Commander, HRC.  Here, not only was his request neither endorsed by his brigade, division, or installation commanders, it appears it was never sent to HRC.  Since he did not qualify for retirement, it is reasonable to presume there was no reason to forward his request to HRC.

	c.  Third, according to his ARPC Form 249-E and his pay records at DFAS, he did not complete 20 years of active service.  Furthermore, he neither explains what authority he used to outprocess nor provides a separation order that authorized him to outprocess.  In other words, in the absence of a separation order, his duty status remains unclear.

	d.  Fourth, no action was taken by the applicant in nearly 10 years.  Surely he would have noticed a problem with his retired pay - had he been eligible - in the first few months after his separation.  For unknown reasons, he does not explain what actions he took to address this issue.  His lack of due diligence gives the appearance of "unclean hands."  In other words, it is reasonable to presume the applicant is not entitled to equitable relief because he did not act in good faith with respect to the issue at hand. 

3.  Nevertheless, although there is no ground to retire him, he remains entitled to separation from the Army and the issuance of a DD Form 214.  His pay records reflect the date of separation as 1 October 2003.  As such, his records should be corrected to show he was separated on that date and issued a DD Form 214 as recommended below. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X______  ___X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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.  issuing him a separation order, effective 1 October 2003, separating him in the rank of SSG by reason of expiration of term of service; 
	
	b.  issuing him a DD Form 214 for the period 23 November 1983 through 1 October 2003 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) – SSG
* Item 4b (Pay Grade) – E-6
* Item 5 (Date of Birth) – as shown on his enlistment contract
* Item 6 (Reserve Obligation Termination date) – 0000-00-00
* Item 7a (Place of Entry Into Active Duty) – Baltimore, MD
* Item 7b (Home of Record) - 1X3 Riverxxxx Road. Baltimore, MD, 21221
* Item 8a (Last Duty Assignment and Major Command) – HHC, 3rd Brigade, 82nd Airborne, FC
* Item 8b (Station Where Separated) – Fort Bragg, NC
* Item 9 (Command to Which Transferred) – N/A
* Item 10 (SGLI Coverage Amount) - $400,000
* Item 11 (Primary Specialty) – 11B (Infantryman) – 13 years, 9 months; 95B (Military Police) – 2 years, 11 months; 16S (Patriot/Missile Crewmember) – 3 years, 0 months
* Item 12a (Date Entered AD This Period) – 1983-11-23
* Item 12b (Separation Date This Period) -  2003-10-01
* Item 12c (Net Active Service This Period) – 0019-10-22
* Item 12d (Total Prior Active Service) – 0000-00-00
* Item 12e (Total Prior Inactive Service) – 0000-02-27
* Item 12f (Foreign Service) – 0006-10-22
* Item 12h (Effective Date of Pay Grade) – 1994-04-11
* Item 13 (Decorations, Medals, Badges, Citations, and Campaigns Ribbon Awarded or Authorized) adding:

* National Defense Service Medal (2nd Award)
* Army Service Ribbon
* Global War on Terrorism Service Medal
* Meritorious Service Medal (2nd Award)
* Army Commendation Medal (6th Award)
* Army Achievement Medal (4th Award)
* Noncommissioned Officer Professional Development Ribbon with Numeral 2
* Army Good Conduct Medal (6th Award)
* Multinational Force and Observers Medal
* German Armed Forces Parachutist Badge in Bronze
* Expert Infantryman Badge
* Korea Defense Service Medal
* Overseas Service Ribbon (3rd Award)
* Kosovo Campaign Medal with one bronze service star
* Parachutist Badge
* Expert Infantryman Badge
* German Armed Forces Parachutist Badge in Bronze

* Item 14 (Military Education) - 

* Heavy Expanded Mobility Tactical Truck (HEMTT), 1 week, 1984
* Primary Leadership Development Course, 4 weeks, 1986
* Headstart German Language Program, 1 week, 1986
* NBC NCO Course, 2 weeks, 1986
* Basic Military Police Course, 8 weeks, 1987
* Junior Leader Maintenance Orientation Course, 1 week, 1988
* Unit Armorer Course, 2 weeks, 1989
* Alcohol and Drug Coordinator Course, 1 week, 1989
* Basic Airborne Course, 3 weeks, 1990
* Basic Noncommissioned Officer Course, 7 weeks, 1991
* Combat Lifesaver Course, 1 week, 1994
* Defense Packaging of Hazardous Material for Transportation, 2 weeks, 1995
* Instructor Development Course, 3 weeks, 1995
* Equal Opportunity Representative Course, 3 weeks, 1995

* 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) – NA
* 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:

* DATA HEREIN SUBJECT TO COMPUTER MATCHING WITHIN DOD OR WITH OTHER AGENCIES FOR VERIFICATION PURPOSES AND DETERMINING ELIGIBILITY OR COMPLIANCE FOR FEDERAL BENEFITS
* MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE
* IMMEDIATE REENLISTMENTS THIS PERIOD ON 19870123/19900105/19930211/19951027/19960812/20000217
* PERIOD OF DELAYED ENTRY PROGRAM: 19830826-19831122//
* SERVICE ALBANIA/KOSOVO FROM 19990420 – 19990922
* SERVICE IN SINAIA/EGYPT FROM 20000707 – 20010114
* 
DD FORM 214 ADMINISTRATIVELY ISSUED/REISSUED ON ________
* Item 19a (Mailing Address After Separation) - 32xx Fiscxx Avenue, Hopewell, VA  28360
* Item 19b (Nearest Relative) - 32xx Fiscxx Avenue, Hopewell, VA  28360
* Item 20 (Member Requests Copy 6 Be Sent to "MD" 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, CHAPTER 4 
* Item 26 (Separation Code) – MBK
* Item 27 (Reentry Code) – 1
* Item 28 (Narrative Reason for Separation) – COMPLETION OF REQUIRED SERVICE
* Item 29 (Dates of Time Lost During This Period) – NA
* Item 30 (Member Requests Copy 4) – ABR

2.  The Board further determined 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 the issuance of retirement orders. 



      ___________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)                                         AR20120021857



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ABCMR Record of Proceedings (cont)                                         AR20120021857



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