PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  11 May 2000
	DOCKET NUMBER:   AR1999026142

	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. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. James M. Alward		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 he be issued an honorable discharge (DD Form 214) from the Regular Army for medical reasons.  In effect, this is a request for separation from active duty by reason of physical disability.

3.  The applicant states that when he swore allegiance by taking the oath of enlistment he believes that he was legally in the Army at that time not just enlisted in the USAR Delayed Entry Program (DEP) which should have been unavailable to him as a USAR unit member.  He cites case law and regulations in support of his request.

4.  The applicant’s military records show that he originally enlisted in the USAR for 8 years, on 26 November 1984, for training as a medical specialist and assignment to a USAR unit.  His DD Form 214 shows that he completed his initial active duty for training on 7 June 1985 and graduated from the medical specialist course.  He had 4 months and 14 days active duty and was returned to his USAR unit.

5.  On 11 June 1986 his unit commander approved a conditional release for enlistment in the Regular Army as a medical specialist.  Effective 18 June 1986 the applicant enlisted in the Regular Army for 3 years.  The DD Form 4/1 (enlistment document) which contains that portion of the agreement pertaining to enlistment in the DEP is not in the available record.  However, DD Form 1966/1 (record of processing), in block 19a, shows the date of his DEP enlistment as 18 June 1986 and the date of his entry on active duty as 18 November 1986.  Also in the available record is a DA Form 3286-40 (statement for enlistment in the DEP, Annex B) which states that he will be assigned to the DEP in a nonpay status and will not be authorized to participate in Reserve training.  A copy of a recruiter management record contains an entry, dated 28 July 1986, that states that the recruiter spoke with the applicant about not having to attend unit drills because he was enlisted in the DEP.

6.  On 13 September 1986 the applicant was admitted to the hospital because of a motorcycle accident.  A note from the recruiter, dated 29 September 1986 states that he spoke with the applicant and was notified that part of one leg would be amputated and that his Regular Army enlistment would be cancelled.  There is no indication that the accident was incident to military training.  A 17 November 1986 order number 224-42, issued by the Recruiting Command (USAREC), transferred him from the DEP to the Individual Ready Reserve (IRR) effective 29 October 1986.

7.  A 30 July 1987 memorandum from his unit states that the applicant had accrued nine unexcused absences effective 25 January 1987.  Order number 
56-19 was issued on 7 August 1987 which transferred him to the IRR effective the same date by reason of unsatisfactory participation.

8.  On 1 December 1992 the applicant was discharged from the USAR by reason of expiration of term of service and issued and honorable discharge certificate.

9.  Army Regulation 135-91 provides for USAR service obligations and participation requirements.  It specifies that a Reserve Component initial enlistment in a unit requires participation until the 8th anniversary of enlistment.  It also specifies that the unit commander may excuse an absence from unit training when documentation is provided that shows it was caused by sickness or injury.  When a soldier accrues nine or more unexcused absences he may be involuntarily transferred to the IRR for completion of his enlistment obligation.  The regulation also provides for the transfer of unit soldiers to the IRR as an exception to policy.

10.  Army Regulation 601-210 provides the policy for enlistment in the USAR and Regular Army (RA).  It states that a USAR unit member may enlist for the RA if otherwise qualified once the unit commander completes the DD Form 368 (conditional release).  The regulation also provides that the soldier will be discharged from the USAR upon entry on active duty.  There is no provision to enlist a USAR member in the DEP of the Army since a soldier may not hold two Reserve status’s simultaneously. 

11.  Army Regulation 635-5 provides for the preparation of separation documents including the DD Form 214.  It states that a DD Form 214 will be prepared for all soldiers at the time of their discharge or release from active duty.  It also states that a DD Form 214 will not be issued to soldiers leaving a Reserve status to join a regular component.  Additionally, a DD Form 214 is not issued to a soldier who reports for active duty and is found disqualified and does not actively enter duties in accordance with orders.

12.  None of the case law cited by the applicant in his application are relevant to his case since he never entered on active duty after 16 June 1986, the date of his DEP enlistment, which established his RA enlistment as 18 November 1986.

CONCLUSIONS:

1.  The applicant became physically disqualified for active duty prior to his scheduled RA enlistment of 18 November 1986, did not enter on active duty at any time after 16 June 1986, and is not entitled to be issued a DD Form 214 for the period 16 June to 29 October 1986.  The issue of a separation from active duty by reason of physical disability is also moot based on the same evidence.

2.  Notwithstanding the aforementioned conclusion, several administrative errors did occur during his enlistment processing for active duty, his release from his active duty commitment, and his involuntary transfer from his unit to the IRR that should now be corrected.
3.  It appears that the applicant was enlisted in the DEP on 18 June 1986 in error because he was still a USAR unit member with an approved conditional release to enlist for active duty on 18 November 1986.  The DD Form 1966/1, block 19a. and the DA Form 3286-40, Annex B should be voided.  Additionally, since he should not have been shown as enlisted in the DEP, his transfer order from the DEP to the IRR should be revoked.

4.  The applicant was involuntarily transferred from his unit to the IRR for nonparticipation based on the accumulation of nine unexcused absences effective 25 January 1987.  Although it was his responsibility to notify his unit of his hospitalization and medical condition, it would appear now to be in the interest of fairness to show that he was transferred from his unit to the IRR under authority of AR 135-91, as an exception to policy and that he was not credited with nine unexcused absences..

5.  Although it appears that the applicant should have been discharged from the USAR by reason of physical disqualification, no medical records or medical finding on the part of the Army were ever processed.  The applicant’s service in the IRR from 7 August 1987 until his discharge on 1 December 1992 should stand.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected for the individual concerned by:

	a.  void block 19a. of the DD Form 1966/1 signed by him on 18 June 1986 and the DA Form 3286-40, Annex B;

	b.  revoking order number 224-42 issued by USAREC which transferred him from the DEP to the IRR;

c.  removing from his record the 30 July 1987 unit memorandum that credited him with nine unexcused absences; and

	d.  amending the unit order number 56-19 to show that he was transferred to the IRR under authority of AR 135-91, as an exception to policy

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__RO___  __CP___  __JA___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____ Raymond V. O’Connor, Jr.____
		        CHAIRPERSON

INDEX

CASE ID	AR1999026142	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000511	
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.		
2.		
3.		
4.		
5.		
6.