IN THE CASE OF:  	  

		BOARD DATE:  9 April 2015	  

		DOCKET NUMBER:  AR20140012527 


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 removal of the statement "Signed declination for continued service DA Form 4991-R" from item 18 (Remarks) his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

2.  The applicant states he was told that if he did not sign the DA Form 4991-R (Declination of Continued Service Statement) he would be considered absent without leave (AWOL).  Currently, potential employers read this statement as if he had to quit the Army and as a result he is denied employment.  

3.  The applicant provides a copy of 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 (USAR) on 30 March 2007 in the Delayed Entry Enlistment Program.  He entered the Regular Army on 10 April 2007.  His DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows in item 20a (Discharge from Delayed Entry/Enlistment Program) that he agreed to serve an initial enlistment period in the Regular Army for 3 years and 17 weeks.  This established his expiration of term of active service as 6 August 2010.

3.  He was promoted to the rank/pay grade of sergeant/E-5 on 1 October 2009.

4.  In March 2010 while assigned to Fort Bragg, NC, he received assignment instructions to Fort Drum, NY.  He notified his command that he did not intend to reenlist for the operational commitment to Fort Drum and signed a DA Form 4991-R on 16 March 2010.  The form lists the disadvantages and consequences of not immediately reenlisting.

5.  The applicant was released from active duty and transferred to the USAR Control Group (Reinforcement).  He received an honorable characterization of service for his 3 years, 3 months, and 27 days of creditable service.  His DD Form 214 shows the following:

* item 18 "Signed Declination For Continued Service DA Form 4991-R"
* item 26 (Separation Code) "MBK"
* item 27 (Reentry Code) "3" 

6.  Army Regulation 601-280 (Army Retention Program) prescribes the criteria for the Army Retention Program.  Chapter 4 addresses the reenlistment options designed to meet the personal desires of the Soldier and to fulfill the needs of the Army.  It states the DA Form 4991-R is used for Soldiers, other than those in their initial term, having 4 or more years of service for pay purposes at their expiration of term of service.  

7.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, USAR, and Army National Guard.

8.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  The SPD code of "MBK" pertains to Soldiers who sign a DA Form 4991-R.  The SPD code "KBK" is the appropriate code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 4, for completion of required active service.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-3 as the proper RE code to assign to Soldiers who have signed a DA Form 4991-R.  For SPD Code "KBK" the appropriate RE Code is "1."

9.  Army Regulation 635-5 (Separation Documents), at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It established standardized policy for preparing and distributing the DD Form 214 and stated block 18 was to be used for Headquarters, Department of the Army (DA) mandatory requirements when a separate block was not available and as a continuation for entries in blocks 11, 13, and 14.  The inclusion of statement related to a DA Form 4991-R was not among the items considered to be DA mandatory entries.

10.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policy for the creation, utilization, administration, maintenance and disposition of the official military personnel file (OMPF).  Only documents pertaining to a Soldier's military career will be filed in the OMPF.  Once properly filed in the OMPF, the document will not be removed unless directed by the ABMCR.  The DA Form 4991-R, if properly completed, is filed as a permanent document in a Soldier's OMPF. 

DISCUSSION AND CONCLUSIONS:

1.  A review of pertinent Army regulations shows the applicant's contention that the statement "Signed declination for continued service DA Form 4991-R" should be removed from his DD Form 214 has merit.

2.  As a first term Soldier, there was no regulatory requirement for the applicant to complete the DA Form 4991-R upon notification of his assignment instructions to Fort Drum, NY months prior to his expiration of his initial term of service.  Therefore, it would be appropriate to correct his record by issuing him a new DD Form 214 removing the erroneous statement, correcting his SPD Code, and his RE Code to show he completed his first term of service.  

3.  As the DA Form 4991-R should not have been completed, it would also be appropriate to void it and then remove it from his OMPF.  



BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  voiding his DD Form 214 issued on 8 June 2010 with a separation date of 6 August 2010;
   
   b.  issuing him a new DD Form 214 that includes: 
   
* deleting from item 18 the statement "Signed declination for continued service DA Form 4991-R"
* correcting item 26 to show "KBK"
* correcting item 27 to show "1"

c.  voiding and removing the DA Form 4991-R from the applicant's OMPF.




      ___________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)                                         AR20140012527



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140012527



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1