PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 June 1999
	DOCKET NUMBER:   AC98-12018/
                                              AR1998013185

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
               	       records
	Exhibit B - Military Personnel Records (including
	       	       advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected by changing his “official” date of separation to his “actual” expiration term of service (ETS) date.  

3.  The applicant states, in effect, that he completed his military service obligation on 22 February 1995 and should have been discharged on that date.  Instead, he was not discharged until 2 December 1996.   

4.  The applicant’s military records show that he enlisted in the USAR on 23 February 1987, incurring an 8-year statutory military service obligation.  He was ordered to initial active duty for training with a reporting date of 23 September 1987.  He completed his training and was released from active duty on 25 February 1988 in pay grade E-2.  His separation document (DD Form 214) lists his reserve obligation termination date as 22 February 1995.  He was transferred to Detachment 1, 447th Military Police Company, Wooster, Ohio.  On 6 December 1990 he was ordered to active duty in support of Operation Desert Shield/Storm and was released from active duty on 26 June 1991.    

5.  On 17 January 1996 a request for assignment was initiated by the applicant’s unit to effect his discharge form the USAR by reason of ETS.  The effective date cited in the request was 22 February 1995.  On 2 December 1996 orders were published by Headquarters, U.S. Army Reserve Command, Atlanta, Georgia, honorably discharging the applicant from the USAR in the rank of sergeant, effective 2 December 1996, the same date as the orders.   

6.  Army Regulation 135-178 (Separation of Enlisted Personnel, Army National Guard and USAR), paragraph 11-1 provides that on expiration of term of enlistment, reenlistment, or period of statutorily obligated service, a soldier will be discharged by the separation authority.  Also, no soldier will be held in service beyond his or her normal ETS, unless his or her ETS is extended by law.  
Further, when through administrative error, a soldier is not discharged on actual date of completion of term of enlistment, reenlistment, or date of completion of statutorily obligated term of service, a remark will be included in the “Remarks” section of the individual’s DA Form 2 and 2-1 as follows:  “Retained beyond normal discharge date for the convenience of the Government.”

7.  Section VIII, paragraph 1-30 (effective date of discharge) of the same regulation provides, pertinently, that the effective date of discharge will be at 2400 hours of the date of notice of discharge.  It further provides that, provided there is no evidence of fraud or manifest error and the member receives actual or constructive delivery, orders discharging a soldier from the USAR will not be revoked or the effective date of separation changed after the effective date of discharge unless such revocation is in the form of written confirmation of oral orders actually issued prior to the effective date of separation.   

CONCLUSIONS:

1.  The applicant completed his statutory military service obligation on
22 February 1995 and should have been discharged from the USAR, absent a new contractual agreement obligating him to further service.  His records contain no such contract nor is there any evidence that his term of service was extended by law. 

2.  It appears the applicant’s failure to be timely discharged from the USAR was an administrative error or oversight over which he had no control.    

3.  The Board assumes since the applicant is requesting correction of his records to show he was discharged 22 months earlier than he actually was that he did not perform any duty with his reserve unit during this time for which he received pay, that would have to be recouped if his request is approved.  

4.  While it would be appropriate to correct the applicant’s records by annotating the remarks section of his DA Forms 2 and 2-1 (his Personnel Qualification Record), the discharge orders and Honorable Discharge Certificate he possesses would still show 2 December 1996 as his discharge date. 

5.  Since the delay in separating the applicant amounted to approximately 22 months, the Board is of the opinion that his records should be corrected by changing the effective date of discharge, based upon manifest error.   

6.  In view of the foregoing and in the interest of justice, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was honorably discharged from the USAR, effective 22 February 1995. 

2.  That the Department issue to him an Honorable Discharge Certificate dated 
22 February 1995.

BOARD VOTE:  

____X___  ____X___  ____X___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____James M. Alward___
		        CHAIRPERSON

INDEX

CASE ID	AC98-12018/AR1998013185	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990616	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	( GRANT )	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.