IN THE CASE OF:
BOARD DATE: 27 August 2013
DOCKET NUMBER: AR20130000994
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 change of his separation code.
2. The applicant states:
* the separation code does not reflect his final disposition with the military
* he had no disciplinary actions taken against him, his record should reflect that
* he would argue that this error may have been a clerical one
* there were several Soldiers going through a similar process during his out processing
* he is not clear why a code of non-retention on active duty would have been selected during his discharge
* the separation code appears to have a negative impact to some employers
3. The applicant provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders D-03-917037, issued by the U.S. Army Reserve (USAR) Personnel Command, St. Louis, MO, dated 23 March 1999
* DA Form 2-1 (Personnel Qualification Record)
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 5 February 1991.
3. His record contains a DA Form 4187 (Personnel Action), dated 13 December 1996, wherein he requested to be separated for his own convenience under the provision of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 16, paragraph 16-5c, for declination of continued service. His request was subsequently approved by the appropriate authority.
4. On 31 January 1997, he was honorably released from active duty and he was transferred to the USAR Control Group (Reinforcement) to complete his remaining service obligation. The DD Form 214 he was issued at the time shows in:
* Item 25 (Separation Authority) the entry "AR (Army Regulation) 635-200, PARA (Paragraph) 16-5B"
* Item 26 (Separation Code) the entry "MGH"
* Item 28 (Narrative Reason for Separation) the entry "Non-Retention on Active Duty"
5. He provides Orders D-03-917037, dated 23 March 1999, that honorably discharged him from the USAR effective 23 March 1999.
6. 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. It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief,
clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. It states for:
* item 25, enter the regulatory or statutory authority cited in directives authorizing separation
* item 26, enter the proper separation program designator (SPD) representing the reason for separation under Army Regulation 635-5-1
* item 28, enter the reason for separation shown in Army Regulation
635-5-1 based on the regulatory or statutory authority
7. 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 states that the SPD code MGH is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 16-5b or c, by reason of non-retention on active duty.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions were carefully considered. However, the separation code used in the applicant's case is correct and was applied in accordance with the applicable regulations. His assigned separation code does not indicate he was separated for disciplinary reasons, only that he voluntarily declined continued service for his own convenience.
2. Additionally, the orders he provided showing he was honorably discharged from the USAR on 23 March 1999 have no bearing on the DD Form 214 he was issued at the time of his release from active duty on 31 January 1997.
3. In view of the foregoing, there is no basis for granting the applicant's requested relief.
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.
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