IN THE CASE OF:	  

		BOARD DATE:	    8 May 2014

		DOCKET NUMBER:  AR20130014916 


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 his records show to he fulfilled his enlistment commitment.

2.  The applicant states his unfulfilled enlistment commitment was not due to his fault; it was result of a breach of contract by the U.S. Army.  He states he discovered the error on his DD Form 214 (Certificate of Release or Discharge from Active Duty) while seeking veterans' benefits.

3.  The applicant provides copies of two enlistment-related documents and his DD Form 214.

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 U.S. Army Reserve Delayed Entry Program on 16 May 1984 for a period of 6 years with an obligation to enlist in the Regular Army on 29 June 1984.  He was discharged from the U.S. Army Reserve on  28 June 1984 and enlisted in the Regular Army on 29 June 1984 for a period of 3 years.

	a.  A DA Form 3286-40 (Statements for Enlistment – Delayed Entry Program), completed by the applicant and an Army official on 16 May 1984 shows the applicant enlisted for the U.S. Army Station of Choice Enlistment Option and training in military occupational specialty (MOS) 55B (Ammunition Specialist).

	b.  A DA Form 3286-19 (Statements for Enlistment – U.S. Army Station of Choice Enlistment Option), completed by the applicant and an Army official on 29 June 1984, shows the applicant was assured an initial assignment to a unit in Panama and training in MOS 55B.  It also shows he acknowledged, in part, "In the event my enlistment commitment cannot be fulfilled, the alternatives available to me will be as provided in Chapter 5 (Separation for Convenience of the Government), AR [Army Regulation] 635-200 (Personnel Separations – Enlisted Personnel), as of the date my claim of unfulfilled enlistment commitment or erroneous enlistment is submitted.  I understand that I will have a period of thirty (30) days to elect an alternative or to request other training or assignment from the date I am advised that my selected option cannot be fulfilled…If I make no election within that period, my claim will be deemed to have been waived."

3.  Headquarters, U.S. Army Missile Command, Redstone Arsenal, AL, Orders 242-13, dated 17 December 1984, awarded the applicant primary MOS 55B effective 16 January 1985.

4.  Item 35 (Record of Assignments) of the applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he was assigned to the 49th Ordnance Company, Fort Riley, KS, on 4 February 1985.

5.  A U.S. Army Military Personnel Center, Alexandria, VA, endorsement, dated 8 May 1985, subject:  Unfulfilled Enlistment, shows the Chief, Separations Branch, reviewed the applicant's request pertaining to his unfulfilled enlistment commitment.  The request was disapproved due to non-availability of assignments in Panama for MOS 55B.  The applicant was offered the option to:

* initiate a waiver of enlistment and continue to serve in his primary MOS at his present duty station
* accept immediate separation under the provisions of Army Regulation 
635-200, paragraph 7-16 (Defective or Unfulfilled Enlistment or Reenlistment Agreements)

6.  On 8 June 1985, the applicant submitted a request for immediate separation from active duty due to his unfulfilled enlistment contract.  On 8 August 1985, the separation authority approved his request under the provisions of Army Regulation 635-200, paragraph 7-16.

7.  The applicant's DD Form 214 shows he was honorably discharged on 27 August 1985 under the provisions of Army Regulation 635-200, paragraph 
7-16b.  He completed 1 year, 1 month, and 29 days of net active service during this period.  It also shows in:

* item 26 (Separation Code) – KDS
* item 28 (Narrative Reason for Separation) – unfulfilled enlistment commitment

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Chapter 7, paragraph 7-16b, provides that an unfulfilled enlistment commitment exists when the member received a written enlistment commitment from recruiting personnel for which the member was qualified, but which cannot be fulfilled by the Army and the member did not knowingly take part in the creation of the unfulfilled enlistment commitment.

9.  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 shows that SPD code KDS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 7-16b, due to an unfulfilled enlistment commitment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his unfulfilled enlistment commitment was not due to his fault; it was result of a breach of contract by the U.S. Army and his military records should be corrected so he may qualify for veterans' benefits.

2.  Records show the applicant enlisted for training in MOS 55B and an initial assignment to a unit in Panama.  Records also show that in the event his enlistment commitment could not be fulfilled, the alternative of separation from the Army was available to him.

3.  On 8 May 1985, the Army acknowledged the applicant's enlistment option of assignment to Panama in MOS 55B could not be fulfilled and he was offered two options.  He could initiate a waiver of enlistment and continue to serve in MOS 55B at his present duty station or he could accept immediate separation under the provisions of Army Regulation 635-200, paragraph 7-16.

4.  On 8 June 1985, the applicant voluntarily submitted a request for immediate separation from active duty due to his unfulfilled enlistment contract.  Accordingly, he was discharged on 27 August 1985 based on the unfulfilled enlistment commitment.

5.  The breach of contract was due to the Army’s actions; however, it was his voluntary request that resulted in his being separated for that breach of his enlistment contract.

6.  The evidence of record shows the separation authority, narrative reason for separation, and separation code entered on the applicant's DD Form 214 are in accordance with governing Army regulations and are proper and correct.

7.  In view of the foregoing evidence, 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 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)                                         AR20130014916



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130014916



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1