IN THE CASE OF:	  

		BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140013866 


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 23 (Type of Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was released from active duty (REFRAD) vice honorably discharged.

2.  The applicant states Item 23 shows he was discharged; however, it should show he was REFRAD.  His military service obligation (MSO) was not terminated and he was assigned to the Individual Ready Reserve (IRR).  Army Regulation 600-8-24 (Officer Transfers and Discharges) defines discharge as follows:

The discharge of an officer is a form of administrative elimination that terminates all military status.  Discharge is distinct from a release from active duty (REFRAD), which is a form of administrative separation that terminates a period of AD (active duty).

Since his military status was not terminated, Item 23 should reflect REFRAD.

3.  The applicant provides:

* two copies of his DD Form 214 for the period ending 8 July 2011
* Orders 125-0017, issued by Headquarters, 1st Infantry Division and Fort Riley, Fort Riley, Kansas on 5 May 2011
* a memorandum from the U.S. Army Human Resources Command (HRC), Fort Knox, Kentucky, dated 25 January 2011
* a copy of his DD Form 214 for the period ending 26 March 2008
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 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.  On 18 September 2007, the applicant enlisted in the Regular Army as a cadet, for the purpose of attending basic training and the Officer Candidate School (OCS).  

3.  On 26 March 2008, upon the completion of OCS, he was discharged from the Regular Army to accept a commission as an officer in the U.S. Army.
 
4.  On 27 March 2008, he was appointed as an officer in the Regular Army as a second lieutenant in the Armor branch.  He immediately entered active duty and was assigned to Fort Riley, Kansas.

5.  On 12 September 2008, he completed the Basic Officer Leader Course.

6.  On 27 September 2009, he was promoted to first lieutenant.

7.  On 1 October 2009, he completed the Army Reconnaissance Course.

8.  On 1 May 2011, he was promoted to captain.

9.  On or before 25 January 2011, he submitted a request for unqualified resignation.  On 25 January 2011, his request was approved.  His approval memorandum notified him that he still had an MSO and he was required to be appointed in the Reserve Component.

10.  The facts and circumstances surrounding his unqualified resignation are not available for review.  However, his record does contain Orders 125-0017, issued by Headquarters, 1st Infantry Division and Fort Riley, Fort Riley, Kansas on        5 May 2011, which directed his reassignment to the U.S. Army transition center, effective 8 July 2011, with subsequent discharge from the Regular Army.  These orders contain the following additional instructions:
* h.  Upon discharge assigned to U.S. Army Reserve (USAR) Control (CON) Group (GP) (Reinforcement (REINF)), 1600 Spearhead Division Ave, Fort Knox, Kentucky  40122. 
* i.  This officer has a statutory service obligation (MSO) through 20150822.

11.  On 8 July 2011, he was honorably discharged under the provisions of Army Regulation 600-8-24, paragraph 3-5 (Rules for Processing Unqualified Resignation), after completing 3 years, 3 months, and 12 days of net active service.  His DD Form 214 shows in:

	a.  	Item 6 (Reserve Obligation Termination Date), the entry "20150822";

	b.  Item 9 (Command to Which Transferred), the entry "USAR CON GP (REINF) 1600 Spearhead Division Ave, Fort Knox, KY 40122";

	c.  Item 23, the entry "Discharge"; and

	d.  Item 25 (Separation Authority), the entry "Army Regulation (AR) 600-8-24, paragraph (PARA) 3-5."

12.  His record is void of documentation that shows he accepted appointment as a Reserve commissioned officer following his separation from the Regular Army.  
13.  His record is void of any derogatory documentation that may have impacted the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA))'s decision to waive or enforce his remaining MSO.

14.  Army Regulation 600-8-24 prescribes the policy and statutory rules applicable to officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  Paragraph 3-5 provides that:

	a.  Any officer on active duty (for more than 90 calendar days) may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the service; the officer is under a suspension of favorable actions, pending investigation, under charges; or when any other unfavorable or derogatory action is pending.  

	b.  Normally, resignations will not be accepted unless on the requested date of separation the officer has fulfilled the service obligation below:

      (1)  Graduates of fully funded commissioning programs must complete the active duty service obligation incurred by participation in such programs; however, this obligation may be waived if the monies are recouped.
   	
   	(2)  An officer must serve in the Armed Forces until completion of their MSO.  An officer has an 8-year MSO.  To waive an officer's MSO, the ASA (M&RA) must find that the officer has no potential for service under conditions of full mobilization.
   
		(3)  An officer who requests resignation before completing the 8-year MSO must agree to accept an indefinite appointment in the USAR to complete such service obligation.

		(4)  An officer who submits an unqualified resignation accepted by HRC will receive an honorable discharge or a general discharge, under honorable conditions.

15.  Army Regulation 635-5 (Separation Documents), the regulation then in effect, prescribed the policies and procedures regarding separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  Specific item instructions follow:

	a.  for Item 9, from Table 2-1 (DD Form 214, Item 9 Entry Determinations), enter the applicable location dependent on the Soldier's status on transition;

	b.  Table 2-1, Rule 3, provided that for Regular Army commissioned officers who were discharged (including those who resigned their commission) and accepted appointment in the USAR, the entry in Item 9 would show the officer was assigned to the USAR CON GP (Annual Training or Reinforcement, as appropriate); and

	c.  for Item 23, enter the appropriate term (REFRAD, Discharge, Retirement, REFRAD and Order to Active Duty in Another Status, Release from Active Duty for Training (ADT), Release from Custody and Control of the Army, or Release from ADT and Discharge from the Reserve of the Army and Return to the Army National Guard (ARNG)).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of Item 23 of his DD Form 214 to show he was REFRAD vice honorably discharged was carefully considered.  He contends Item 23 should show he was REFRAD since his MSO was not terminated and he was assigned to the IRR.  
2.  The facts and circumstances surrounding his unqualified resignation are not available for review.  However, the evidence shows he had an 8-year MSO until 22 August 2015.  Despite this MSO, his request for unqualified resignation was accepted and approved and he was honorably discharged on 8 July 2011.

3.  According to Army Regulation 600-8-24: 

	a.  Officers must serve in the Armed Forces until they complete their 8-year MSO; however, the ASA (M&RA) may waive the MSO if he/she determines the officer has no potential for service under conditions of full mobilization.  There is no evidence the ASA (M&RA) waived his MSO.

	b.  A Regular Army officer who requests resignation before completing his/her 8-year MSO must agree to accept an indefinite appointment in the USAR to complete such service obligation.  

	c.  An officer who submits an unqualified resignation accepted by HRC will be discharged.

4.  Upon his discharge, he was required to complete a DA Form 71 accepting a commission as a USAR commissioned officer.  By law, he could not have been discharged from the Regular Army unless he executed a DA Form 71 for appointment in the USAR and agreed to serve the remainder of his obligated service in the USAR.  

5.  His record is void of evidence that shows he was appointed as a USAR commissioned officer; however, due to the nature of his separation and the rules governing his MSO, it must be presumed he was appointed in the USAR in accordance with this requirement.  

6.  According to Army Regulation 635-5, then in effect, for Regular Army commissioned officers who were discharged (including those who resigned their commission) and accepted appointment in the USAR, the entry in Item 9 would show the officer was assigned to the USAR CON GP (Annual Training or Reinforcement, as appropriate).  

7.  The applicant's DD Form 214 confirms he was discharged by reason of unqualified resignation (Army Regulation 600-8-24, paragraph 3-5) and he was assigned to the IRR.  In accordance with the governing regulations, his DD Form 214 accurately represents his separation.  

8.  There is no error or injustice; therefore, in view of the foregoing, there is no basis for granting the 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.

ABCMR Record of Proceedings (cont)                                         AR20130009473



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ABCMR Record of Proceedings (cont)                                         AR20140013866



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