MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:           .

	BOARD DATE:            28  July 1999     
	DOCKET NUMBER:   AR1999023440

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

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Margaret V. Thompson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that his separation code on his                  DD Form 214 be corrected. 

The applicant states, in effect, that the reason for his separation was not a HQDA imposed bar to reenlistment, but a self imposed bar.  He was never informed of this [separation code and reason], until applying for a civil service position.  He states that he was lied to, and that he had agreed to a different separation code and reason and not those as indicated on his DD Form 214.  This code has hindered him in obtaining military benefits as well as employment.  

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was inducted into the Army on 1 April 1971 and was released from active duty early on 21 December 1972 at Fort Jackson, South Carolina in order to attend school.  He enlisted again on 17 April 1974 and was released from active duty with the rank of Sergeant on 14 April 1977.  He reenlisted in the Army Reserve for two years on 12 November 1977 and was discharged from the Army Reserve on 11 November 1979.  He reenlisted in the Regular Army for four years on 22 January 1980 and remained on continuous active duty until his discharge in 1987.

The applicant has been assigned in various locations throughout the world, and has been awarded the NCO Professional Development Ribbon, and three awards of the Good Conduct Medal, among others.

On 25 September 1986 the applicant was informed by the Enlisted Records and Evaluation Center at Fort Benjamin Harrison, Indiana, that a DA selection board determined that he was barred from reenlistment under the DA qualitative management program (QMP).  

The applicant stated that he had been counseled and understood the options available to him as a result of the DA bar to reenlistment, and that he would sign a statement that he would not submit an appeal, and that he intended to request immediate discharge. 

On 13 November 1986 the applicant requested immediate discharge from the Army under the provisions of Army Regulation 635-200, paragraph16-5, in that he believed that he could not overcome a DA imposed bar to reenlistment.  He stated that he understood that he was being separated before his normal ETS (effective date of separation) for his own convenience.  He stated that he understood that once separated he would not be allowed to reenlist at a later date.  On 27 January 1987 the separation authority approved the applicant’s request.  He was discharged at Fort Sam Houston, Texas, on 6 February 1987 under the provisions of Army Regulation 635-200, paragraph 16-5a, because of a HQDA imposed bar to reenlistment.  His separation code on his DD Form 214 is shown as “KGF”.

Army Regulation 635-200, then in effect, provides for the administrative separation of enlisted soldiers.  Paragraph 16-5 provides for early separation of personnel denied reenlistment, and paragraph 16-5a states that soldiers who perceive that they will be unable to overcome a HQDA bar to reenlistment will be allowed to be discharged.  Soldiers may request discharge anytime after receipt of the HQDA bar to reenlistment.  Discharge must be accomplished no later than 6 months from the date of request in spite of any existing service obligation which will not be fulfilled by such early release date.  Approved requests for discharge will be irrevocable.  

Army Regulation 635-5-1, then in effect, prescribes the specific authorities, the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The separation code (SPD) for a soldier discharged because of a HQDA imposed bar to reenlistment under the provisions of Army Regulation 635-200,           paragraph 16-5a, is “KGF”. 

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 6 February 1987, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 6 February 1990.

The application is dated 11 September 1998 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___fne__  __lem___  ___mvt__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023440	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990728	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 142.00		
2.  110.02		
3.		
4.		
5.		
6.