IN THE CASE OF:	  

		BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140008380 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his narrative reason for separation as "reduction in force" (RIF).

2.  The applicant states he was offered an opportunity to separate with an honorable discharge prior to his projected separation date.

	a.  He participated in Operations Desert Shield/Desert Storm for 7 months and 11 days and he wanted to take advantage of the RIF like many of the returning Soldiers.  He was not eligible for separation under the RIF because he had not completed 3 years of service.  He was issued a locally-imposed bar to reenlistment.  He had only 4.5 months remaining on his initial service obligation.  His commanding officer suggested that he not appeal the action and accept the early discharge.  The offer was presented as "similar" to the RIF.

	b.  The narrative reason for separation has negatively affected him over the last 24 years, including eligibility for the GI Bill and membership in the Veterans of Foreign Wars.  The separation code indicates he was unfit for duty.  He had and has the mental and physical capacity to continue his mission.

	c.  The commanding officer offered this separation to many of the unit Soldiers as a great way to get out of the service early with no effect on the character of service or discharge.  The offer was misleading and had monumental effects on his service.

	d.  He served honorably during wartime and his narrative reason for separation undermines his service.

3.  The applicant provides 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 Regular Army on 2 March 1989.

3.  On 2 July 1990, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for falsely signing a sick call slip on 15 June 1990 and changing the disposition to show his duty status as sick-in-quarters for 24 hours.

4.  On 10 November 1990, he failed to report for post guard duty.

5.  On 1 December 1990, he was counseled for failing to report to his assigned place of duty on 29 November and 1 December 1990.

6.  His general counseling for the training period 5 December 1990 through 5 January 1991 shows his appearance and job performance were rated as "good" and his attitude was rated as "average."

7.  In January 1991, he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for unlawfully striking another Soldier with his fist.

8.  On 22 May 1991, he was counseled for failing to report to prime-time training on the same date.

9.  On 3 August 1991, his commander was notified of his entry in the military police desk blotter (a daily chronological record of all police activity developed from reports, complaints, information, and incidents) for being involved in an altercation with another Soldier on 21 July 1990 at 0010 hours.  Further investigation disclosed that he had been drinking under the legal age without permission.

10.  On 12 August 1991, he was counseled for failing to report to his assigned place of duty on the same date.

11.  On 14 August 1991, he was counseled for being insubordinate.  He was advised that he would be given a reasonable time to correct his deficiencies and rehabilitate himself into a productive, satisfactory Soldier and he would be processed for separation if his conduct continued to be unsatisfactory.  He was further advised that he could receive a general discharge if he were separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5 or 13, and he could receive a discharge under other than honorable conditions if he were separated under the provisions of chapter 14.  Each type of discharge could have serious consequences affecting civilian employment, veterans' benefits, or future service in the U.S. Armed Forces.

12.  On 22 August 1991, the applicant's company commander notified the Physical Examination Section of Womack Community Hospital, Fort Bragg, NC, of the applicant's pending separation under the provisions of Army Regulation 635-200, chapter 14, and requested an appointment for a physical examination.  The company commander stated the applicant received an Article 15 for changing his sick call slip disposition to show his duty status as sick-in-quarters for 24 hours, striking another Soldier with his fist, missing prime-time training, being insubordinate, and failing to be at his appointed place of duty on three occasions.  The company commander further stated the applicant had been counseled regarding his separation commencing upon completion of a physical examination.

13.  On 20 September 1991, a bar to reenlistment was imposed against him citing two Article 15s and six indicators of untrainability or unsuitability.  He acknowledged receipt of the recommended bar to reenlistment and indicated he did not desire to submit a statement in his own behalf.  On 23 September 1991, he indicated he would not appeal the bar to reenlistment.

14.  On 23 September 1991, he submitted a request for separation under the provisions of Army Regulation 635-200, paragraph 16-5.  He stated he understood that if his request for separation before his normal expiration of term of service were approved, it would be for his own convenience.  He understood that recoupment of unearned portions of any enlistment bonus/selective reenlistment bonus was required.  He also understood that he would not be permitted to enlist at a later date once separated.

15.  His request for separation under the provisions of Army Regulation 635-200, paragraph 16-5b (Voluntary Separation of Soldiers Denied Reenlistment) was subsequently approved by his battalion commander, the officer exercising summary court-martial jurisdiction.

16.  Headquarters, 573rd Personnel Service Company, Fort Bragg, NC, 
Order 195-16, dated 9 October 1991, reassigned him to the U.S. Army Transition Point on the same date and further discharged him effective 16 October 1991.

17.  His DD Form 214 shows he was honorably discharged on 16 October 1991 under the provisions of Army Regulation 635-200, paragraph 16-5b, by reason of a locally-imposed bar to reenlistment.  He completed 2 years, 7 months, and 15 days of active service during this period.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 16-5, in effect at the time, provided for voluntary separation of Soldiers who were denied reenlistment.  Paragraph 16-5b stated Soldiers who perceived they would be unable to overcome a locally-imposed bar to reenlistment could request immediate separation.  Separation under this paragraph would be accomplished as soon as practicable, but not later than 6 months from the date of approval of the request, notwithstanding any existing service obligation that could not be fulfilled by the separation date.  The service of Soldiers separated under this paragraph would be characterized as honorable unless an uncharacterized description of service was required for Soldiers in an entry-level status.

	b.  Paragraph 16-5, in effect at the time, provided for early separation due to RIF, strength limitations, or budgetary constraints.  Soldiers could be separated prior to expiration of term of service or period for which ordered to active duty when strength authorization limitations, strength restrictions, or budgetary constraints required the size of the enlisted force to be reduced.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was offered an opportunity to separate with an honorable discharge prior to his projected separation date similar to RIF and requests correction of his DD Form 214 to show his narrative reason for separation as RIF.

2.  The evidence of record shows the applicant had a history of unsatisfactory service resulting in his bar to reenlistment.  He voluntarily submitted a request for separation under the provisions of Army Regulation 635-200, paragraph 16-5, for his own convenience.  There is no evidence he was being considered for early separation due to a RIF.

3.  In view of the foregoing evidence, there is no basis for granting his 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)                                         AR20140008380



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ABCMR Record of Proceedings (cont)                                         AR20140008380



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