MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 March 2000             
	DOCKET NUMBER:   AR1999023850

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch Jr. 		Member	
	Mr. Christopher J. Prosser		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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 essence, reinstatement in the Delayed Entry Program (DEP) of the United States Army Reserve (USAR), with back pay and allowances from September 1980 through August 1986.  He also requests that deleted  “Sensitive Compartmented Information (SCI), from Annexes B and C” be sent to him.   

APPLICANT STATES:  That he has never received pay for his annual recall to the DEP from 1980 through 1986 and that he has never received the deleted SCI (counterintelligence information).  His records have been lost for 10 years and he did not receive his DD Form 2l4 (Certificate of Release or Discharge from Active Duty) until 1996. 

EVIDENCE OF RECORD:  The applicant claims his military records were lost.  The applicant’s official military personnel file (OMPF) has been found and is on loan to another Department of the Army agency in connection with litigation in a Federal court.  Upon completion of that agency’s actions, the OMPF will be returned to the Federal registry in St. Louis.  His OMPF was made available to this Board in connection with the following review of his case.  

On 6 August 1980, the applicant enlisted in the DEP of the USAR for 6 years.  The DD Forms 4/1 through 4/3 (Enlistment/Reenlistment Document-Armed Forces of the United States) indicate that he would be called to active duty within 365 days for a period of 4 years.  In item 10a in the Agreements portion of the enlistment contract it states, in pertinent part: “My enlistment in the DEP is in a non-pay status.”  In item 10b (Remarks) it is stated:  “I understand my period of time in the DEP is creditable for pay purposes upon enlistment on active duty.  I also understand that this time is NOT counted toward fulfillment of my military service obligation or commitment. “  In item 10c, which he initialed, it states:  “The agreements in this section and the attached annex(es) are all the promises made to me by the Government.  ANYTHING ELSE ANYONE HAS PROMISED ME IS NOT VALID AND WILL NOT BE HONORED. __LGW____”  (Applicant’s initials).  Annex B  and C  ( DA Forms 3224-40 (Statements for Enlistment-DEP) and 3286-3 (Statements for Enlistment-Part VI, United States Army Training of Choice Enlistment Option) essentially show that he agreed to serve on active duty for 4 years and would be trained in military occupational specialty (MOS) 
75C10 (Personnel Management Specialist).

On 16 September 1980, the applicant was discharged from the DEP and was enlisted in the Regular Army for 4 years, in pay grade E-2 due to college credits. He had served for 1 month and 10 days in the DEP.  

He was assigned to Fort Knox, Kentucky, for his basic combat training and his advanced individual training in MOS 75C, which he completed on 23 February 1981.  He was then assigned to Germany for duty in his MOS.  He was advanced to pay grade E-3 on 1 May 1981 while in Germany.  
On 23 July 1981, he received nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice for disobeying a lawful order to return to the administrative section of his unit and for leaving his place of duty without permission, both incidents on 21 July 1981. The NJP action was administered by his company commander, a lieutenant colonel.  His punishments included reduction to pay grade E-2 and the forfeiture of $50 pay per month for 
2 months, but both punishments were suspended for 90 days.  

On 14 August 1981, the unit commander set aside the punishment of forfeiture of pay in the amount of $50 pay per month for 2 months.  However, on 17 August 1981, the suspension for reduction to pay grade E-2 was vacated for being absent without authority on 9 August 1981.  

On 20 August 1981, his company commander, a lieutenant colonel, initiated discharge proceedings under the provisions of Army Regulation 635-200, paragraph 5-31, the Expeditious Discharge Program (EDP).  The commander cited his poor attitude, lack of motivation and inability to adapt socially or emotionally as documented by two counseling forms, dated 16 July 1981, from his first sergeant concerning his duty performance and on 17 July from another noncommissioned officer (NCO) concerning belligerent comments he made to the NCO.  The commander also cited the NJP action and subsequent vacation action, as enumerated above.  The commander went on to state that transfer to another unit would be futile due to the applicant’s inability to handle his personal problems and military duties in an acceptable manner.  In addition, the commander indicated that the applicant had an extremely hostile attitude to anyone issuing orders and had refused to accept guidance from his superior officers and NCO’s.  He was informed that he could receive an honorable or a general discharge.  He could submit a statement in his own behalf if he so desired.  

The applicant acknowledged receipt of the notice on 20 August 1981, consented to the discharge action, did not submit any statements in his behalf and stated that he had been given the opportunity to consult with a legal officer concerning the discharge.  On 20 August 1981, the separation authority, the same officer who initiated the discharge action, approved the discharge with a GD.  However, he directed that the applicant be transferred to the Individual Ready Reserve (IRR).  

On 25 August 1981 he underwent a medical examination.  No medical problems were identified by the applicant, and no medical deficiencies were found.  He was not specifically cleared for retention or separation.  

On 28 August 1981, the applicant was honorably separated from active duty, with a general discharge, under honorable conditions, in accordance with Army Regulation 635-200, paragraph 5-31, by reason of failure to maintain acceptable standards for retention (EDP).  He was credited with 11 months and 13 days active duty and he had no lost time.  He had been awarded the Army Service Ribbon and had two weapon qualification badges.  

On the same date, Orders 240-250, Headquarters US Army Training Center and Fort Dix were issued, transferring him to the USAR Control Group (ANL TNG), St. Louis, Missouri.  He was shown to have a 6-year Selective Service Act obligation.  The same order stated, in pertinent part:  “YOU ARE NOT REQUIRED TO REPORT PHYSICALLY TO YOUR ASSIGNED CONTROL GROUP; HOWEVER, YOU MUST KEEP THEM INFORMED BY MAIL OF YOUR CURRENT ADDRESS.”  This order was signed by a Chief Warrant Officer (W-2), the assistant adjutant general of the installation.  

There is no evidence of record or with his application whether he ever was ordered to or participated in any USAR annual training periods between August 1981 and August 1986.   

On 10 September 1986, DARP-PAT-R(N1) ORDERS D-09-069690 were issued discharging the applicant from the USAR (Ready Reserve) or the IRR, effective 
15 September 1986, with a general discharge, at the completion of his service obligation.  

He also appears to have claimed an additional period of service in “MOS 97B, counterintelligence agency”.  On 14 September 1990, his Representative in Congress was informed by the Army Reserve Personnel Center (ARPERCEN) that his military records only showed active service between 1980 and 1981 and that his only MOS was MOS 75C (Personnel Management Specialist).  

On 1 July 1991, the Defense Investigative Service notified the applicant they only had a record of a favorable National Agency Check (NAC), completed on 
3 October 1980. A check was made with the Federal Bureau of Investigation in connection with the NAC, but he was assured that no other known disclosures had been made outside the  Department of Defense.  That agency could not answer the remainder of his inquiry due to the “broad assortment of documents and correspondence received from you.”  No other agencies could be suggested that he might contact to help him with his problems.    

On 15 October 1991, the applicant made application to the Army Discharge Review Board (ADRB) for a review of his discharge.  His issues at that time are unknown, but on 19 April 1993 the ADRB reviewed his case and upgraded his discharge to fully honorable, and changed the reason for his discharge to separation by direction of the Secretary of the Army in accordance with chapter 5, Army Regulation 635-200.  A new DD Form 214 was issued to him at that time. A new upgraded discharge from the USAR was directed, but it is unclear whether this document was ever issued.   

On 3 April 1996, he made application to this Board.  It essentially appears that at that time he was attempting to obtain additional service credit for the purpose of receiving medical or vocational services from the Veterans Administration (VA), now the Department of Veteran Affairs (DVA).  He claimed that he had medical problems while in the service. 

On 21 August 1991, this Board notified him that administrative action had already been taken on his DD Form 214, and that his case was being administratively closed without further action.  Further, he was advised that if he desired additional assistance, he could contact one of several veteran service agencies to help him, such as the American Legion or the Disabled American Veterans.

Evidence of record also shows that his Representative in Congress sent him two letters in June and July 1993 confirming the VA requirement for 24 months active service to receive VA benefits.   

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-31 of that regulation, in effect at the time, provided, in pertinent part, for the separation of personnel because of unsatisfactory performance or conduct (or both). This policy applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation or self discipline for military service, or that they had demonstrated characteristics not compatible with satisfactory continued service.

The soldier was required to consent to the discharge and soldiers who possessed a potential for rehabilitation would not be separated under this authority. In order to receive a GD, the soldier must have received the opportunity to consult with an appointed legal counsel for consultation.

Army regulations governing the Reserve components in 1981, and even today, provide for the DEP.  This program allows prospective enlistee’s the opportunity to gain service affiliation in the USAR, lock in specific MOS training vacancies up to 365 days (1 year) beyond the date of initial enlistment, and, in many cases, allows them to complete their high school education prior to actually reporting for basic combat and advanced individual training.  The program is in effect for soldier’s only before they enlist in the Regular Army, not after performing any periods of active duty.  At the time of enlistment in the Regular Army, the soldier is discharged from the DEP.  Soldiers in the DEP do not receive any pay or allowances. 

After a soldier performs his obligated period of active service, or is released prior to their obligated active service for cause, he or she may be returned to the USAR or the National Guard to completed their obligated period of service.  Several programs/control groups exist in the USAR to control these soldier’s.  One of the programs is the  USAR Control Group (Annual Training), also known as the IRR.  The records of soldiers in this group are screened annually.  A selected number, in varying MOS’s, are ordered to active duty for 2 weeks training on an annual basis.  Only if they actually are ordered to active duty will they receive pay and allowances.  Failure to be ordered to active duty is not grounds for separation from the USAR, rather the soldier serves until the end of the 6 (now 8) year obligated period of Regular Army (active) or USAR (inactive) service. 

Entitlement to security clearances and documentation concerning these clearances are not considered military personnel records or files subject to correction under the provisions of Title 10, United States Code, Section 1552, the statutory authority under which this Board operates.  The applicant should contact the US Army Central Registry at Fort Huachucha, Arizona, for assistance on this problem.

Determination of entitlement to veteran benefits, which were formerly administered by the VA, are now administered by the DVA within that agency’s rules and regulations.  This Board is not empowered to determine entitlements to such benefits.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s records show that he was discharged from the DEP and enlisted in the Regular Army on 16 September 1980.  After that date, he would not have been permitted to, nor has he provided any evidence that he ever reentered the DEP while affiliated with the US Army.  Even if he had been improperly returned to the DEP, he would not have been entitled to any pay or allowances.  

3.  At the time of his separation from active duty on 28 August 1981, he was transferred to the USAR Control Group (Annual Training), or the IRR.  There is no evidence of record, nor has the applicant provided any evidence, that he was ever activated for any periods of annual training from August 1981 to September 1986.  It would only have been during those periods of service that he would have been entitled to any pay or allowances.  

4.  The Board declines to address the issue of the status of his security clearance and the lack of receipt of security clearance documentation.  He is referred to the US Army Central Registry at Fort Huachucha for information on that aspect of his application.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jlp____  ___owt___  ___cjp__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999023850	
SUFFIX		
RECON		
DATE BOARDED	20000316	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	128.00	
2.	144.00	
3.	135.00	
4.	100.00	
5.		
6.