BOARD DATE:	  11 February 2014

		DOCKET NUMBER:  AR20130010415 


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, in effect:

* correction of item 6 (Separation Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a code other than "KGF"
* release of education funds paid while on active duty; i.e., entitlement to the Montgomery GI Bill (MGIB) education benefits

2.  The applicant states:

* he attached the documents that clarify undue prosecution after acquittal of court-martial finding
* the investigation continued even after acquittal:  interrogation of witnesses, blood samples, and lab results
* at the time of separation, he was told he did not pay into the military education fund while on active duty (MGIB deductions) thus barring him from educational benefits post military service

3.  The applicant provides:

* DD Forms 214, ending on 18 April 1987 and 26 April 1990
* DA Form 2-1 (Personnel Qualification Record)
* DD Form 4 (Enlistment/Reenlistment Document)
* Certificate of Training
* DA Form 2627 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* Multiple DA Forms 4856 (General Counseling Form)
* Letter from the National Personnel Records Center
* DA Form 4187 (Personnel Action), reduction to E-1
* DA Form 4126-R (Bar to Reenlistment Certificate) and reviews
* Medical and dental records
* Leave and Earnings Statements (LES), dated between December 1986 and April 1990
* Court-Martial Record of Trial
* U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI)

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 records show he enlisted in the U.S. Army Reserve (USAR) on 1 October 1986.  He entered active duty for training (ADT) on 20 November 1986 and completed the required training for award of military occupational specialty 31K (Combat Signaler).

3.  He was released from ADT on 18 April 1987.  His DD Form 214 for this period of service shows he completed 4 months and 29 days of active service. 

4.  His records also show he enlisted in the USAR under the Delayed Entry Program for a period of 8 years on 26 October 1987.  His DA Form 3286-59 series (Statement for Enlistment - U.S. Army Enlistment Option) shows he acknowledged he understood he would be automatically enrolled in the GI Bill and he must remain enrolled which requires a deduction from his pay.  He understood that: 

* the money cannot be refunded and he must complete his Selected Reserve obligation for entitlement to the MGIB
* he must use his benefits within 10 years of his separation or discharge from active duty for entitlement to the MGIB

5.  He was discharged from the DEP on 30 November 1987 and enlisted in the Regular Army for 4 years on 1 December 1987.  He was initially assigned to the 519th Military Intelligence Battalion, Fort Bragg, NC, from on or about 2 December 1987 to 19 December 1988. 

6.  A CID ROI (dated 19 February 1990) shows the applicant committed two offenses at Fort Bragg, NC: 

* larceny of non-appropriated funds on 23 March 1988 (listed under Military Police Report 88-MPR023-XXXXT-7X5X) with an unknown disposition
* unspecified traffic violation on 28 July 1988 (listed under Military Police Report 88-MPR023-XXXXL-XQX) with an unknown disposition  

7.  Also while at Fort Bragg, NC, he was frequently counseled by members of his chain of command for various infractions including the following:

* allowing visitors to stay in the barracks after visiting hours 
* failing to be at his appointed place of duty, twice in 2 days
* failing to report as directed
* failing to inform the platoon sergeant or leader he was leaving the range
* disobeying a lawful order to remove a suitcase from his barracks room
* transporting his M-16 Rifle in a privately owned vehicle (POV)
* failing to meet with the company commander as ordered
* failing to show up at his appointed place of duty

8.  On 29 August 1988, he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for violating a general regulation by transporting a U.S. Government owned weapon in his POV.  

9.  On 10 November 1988, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against him citing his numerous incidents of failure to report and generating a track record worthy of the bar.  

10.  The applicant was furnished a copy of the bar and he rendered a personal statement wherein he stated:  

* he was never briefed about transporting a weapon in his POV and the bar does not contain an explanation why this action was not taken earlier
* he did not believe a bar was an appropriate remedy to his situation as he felt that after receiving the Article 15 he was placed in an impossible situation
* the intent of the bar was to make him crack under pressure and flag his records so he would not be able to go to Germany

11.  On 23 November 1988, the applicant's immediate commander reviewed the applicant's statement and still recommended the applicant be barred.  He stated:

* the summarized Article 15 that the applicant had received was appealed and upheld by the battalion commander
* the bar to reenlistment was not initiated earlier because he did not deem it appropriate; however, the applicant has now generated a track record worthy of both
* the applicant's work environment was no more demanding than any other Soldier’s in the unit; the applicant had been unable to meet the minimum standards applied to every E-3 in the company

12.  On 1 December 1988, the approval authority approved the bar to reenlistment and on 6 December 1988, the applicant acknowledged receipt of the bar.  He indicated he would not appeal it. 

13.  In or around January 1989, the applicant was issued reassignment orders and he proceeded to Germany on or about 14 January 1989.  He was assigned to the 2nd Battalion, 1st Field Artillery Regiment.

14.  On 28 January 1989, the applicant's former company commander forwarded the completed and approved bar to reenlistment to the applicant's gaining commander.  

15.  On 13 September 1989, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for missing formation on 31 August 1989 and failing to sign out of the battery before departing to Giessen.  He elected not to appeal. 

16.  A CID ROI (dated 19 February 1990) shows an investigation revealed there was probable cause the applicant committed the offense of aggravated assault on 19 August 1989 at Fuerth, Germany. 

17.  On 29 September 1989, court-martial charges were preferred against the applicant for one specification of assaulting another Soldier and one specification of unlawfully striking another Soldier.  

18.  On 17 November 1989, at a general court-martial, the applicant pled not guilty to the charge and its specifications of assaulting and unlawfully striking other Soldiers.  The court found him not guilty.  The finding was later approved by the convening authority on 22 December 1989.

19.  On 1 December 1989, the applicant's immediate commander reviewed the bar to reenlistment and recommended it remain in place.  He stated that the applicant's performance and attitude had not improved over the past months and he even recommended him for separation. 

20.  On 1 March 1990, the applicant's battalion commander issued a DA Form 4187 ordering the applicant's reduction to the lowest enlisted grade effective 7 February 1990.  The facts and circumstances surrounding this reduction are not available for review with this case.  

21.  On 30 March 1990, the applicant's immediate commander reviewed the bar to reenlistment and recommended it remain in place.  He stated that the applicant had shown no potential for continued service.  

22.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 that shows he was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph16-5b, by reason of inability to overcome a locally imposed bar to reenlistment.  

23.  His DD Form 214 shows he completed 2 years, 4 months, and 26 days of creditable active service and he had 4 months and 29 days of prior active service.  Additionally, this form shows in:

* item 25 (Separation Authority) the entry "Paragraph 16-5b, Army Regulation 635-200"
* item 26 (Separation Code) the entry "KGF"
* item 28 (Narrative Reason for Separation) the entry "Locally imposed bar to reenlistment"

24.  He provided his service dental and medical records.  He also provided LESs from December 1986 to April 1990.  A deduction of $100.00 pay per month for the GI Bill is shown on each of his LESs from December 1987 to November 1988.  


25.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligation.  Paragraph 16-5b(1) of the regulation in effect at the time of his discharge stated that members who perceive that they will be unable to overcome a locally imposed bar to reenlistment may apply for immediate separation.  

26.  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 the SPD code KGF is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 16-5b, by reason of a locally imposed bar to reenlistment.  

27.  Chapter 30, Title 38 of the U.S, Code, established eligibility requirements for participation in the Veteran's Educational Assistance Act of 1984 (New GI Bill).  It provided that individuals who entered an initial period of active duty on or after 1 July 1985 would be automatically enrolled in the program unless they opted to disenroll within a specific time frame established by the individual Services.  Once enrolled in the New GI Bill, the individual's basic pay was reduced $100.00 per month for each of the first full 12 months of active duty and could not be refunded, suspended or stopped.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to the Separation Code:  

	a.  The available evidence shows the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant in November 1988 that was approved by the approval authority on 1 December 1988.  Upon the applicant's reassignment to Germany, the losing commander forwarded the complete bar to reenlistment to the gaining commander.  

	b.  The gaining commander reviewed the bar to reenlistment on two occasions.  In each instance, the immediate commander recommended the bar remain in place.  During the first review, the commander stated the applicant's performance and attitude had not improved over the past months and he even recommended him for separation, and during the second review the commander stated the applicant had shown no potential for continued service.  

	c.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 that shows he was honorably discharged under the provisions of Army Regulation 635-200 by reason of inability to overcome a locally imposed bar to reenlistment.

	d.  It appears he requested a discharge from the Army under the provisions of Army Regulation 635-200, paragraph 16-5b, due to his belief that he could not overcome a locally imposed bar to reenlistment.  In the absence of evidence to the contrary, it is presumed his separation was processed in accordance with applicable regulations in effect at the time.  

	e.  The only valid narrative reason for separation permitted under that paragraph is "locally imposed bar to reenlistment" with assignment of an SPD code of KGF, which are properly shown on his DD Form 214.  Therefore, there is no basis for granting this portion of his request.

2.  With respect to the education benefits:  

	a.  When the applicant enlisted, he acknowledged he understood he would be automatically enrolled in the GI Bill and he must remain enrolled which requires a deduction from his pay.  As such, a deduction of $100.00 per months for the GI Bill is shown on each of his LESs from December 1987 to November 1988.  

	b.  The applicant understood that his basic pay would be reduced $100.00 per month for 12 months of active duty, that the money cannot be refunded, that he must complete his Selected Reserve obligation for the entitlement to the MGIB, that he must use his benefits within 10 years of his separation or discharge from active duty for entitlement to the MGIB, and he must receive an honorable discharge for the service which established entitlement to the New GI Bill.  

	c.  Although it is clear that the applicant neither completed the period of active service he enlisted for nor completed his 8-year statutory military service obligations, the determination of eligibility for MGIB benefits is not within the purview of this Board.  MGIB eligibility questions should be addressed to the Department of Veterans Affairs.  

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)                                         AR20130010415



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ABCMR Record of Proceedings (cont)                                         AR20130010415



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