PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           24 May 2000                   
	DOCKET NUMBER:   AR1999028688

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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 a DD Form 214 for the period          5 through 15 March 1993.

3.  The applicant’s counsel states that he was mistakenly arrested as being absent without leave (AWOL) on 5 March 1993.  He was transferred to Fort Ord, CA on 10 March 1993, issued a green active duty military identification card, was forced to cut his hair and shave his mustache and was told he was on active duty.  He was not released until 15 March 1993 after the commander of the Fort Ord, CA Personnel Control Facility spoke with the commander of his old U. S. Army Reserve (USAR) unit.

4.  The applicant’s military records show that on 29 April 1987 he was released from active duty after serving over 5 years in the Regular Army and was assigned to a Selected Reserve unit.  He was discharged from the Ready Reserve effective 28 April 1988.

5.  On 16 April 1990, the applicant reenlisted in the USAR.  Apparently, personal problems caused him to be unable to continue active participation in the USAR and in September 1990 he requested transfer to the Individual Ready Reserve.  His unit apparently approved his request but failed to follow-up with orders.  As a result, he was reported AWOL when he failed to report when his unit was activated for Operation Desert Storm.  There is no evidence of any disciplinary action being taken against him and on 18 October 1991 orders were published honorably discharging him from the Ready Reserve effective 15 April 1991 in the rank and grade of Sergeant, E-5.

6.  Apparently, the applicant’s unit failed to update his status and he continued to be listed by the U. S. Army Deserter Information Point as a deserter.  As a result, he was arrested by civilian authorities on 5 March 1993.  He was escorted to Fort Ord, CA and issued a military identification card, a provisional pass and military clothing.

7.  On 16 March 1993, the commanding officer of the Fort Ord Personnel Control Facility wrote to the applicant’s civilian employer explaining his (erroneous) arrest for being AWOL and hoping “…this letter will clarify Mr. ____’s situation and no ramifications occur on his civilian employment.”

8.  On 27 January 2000, in a response to the Board for further information, the applicant stated while at Fort Ord he never saw any finance personnel to receive compensation and he did not receive travel pay to return home.  He was simply told he was free to go and he was asked if he was able to get home on his own.  He paid $38.50 for his bus ticket home. 

9.  Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214. Separation documents provide soldiers a record of their military service; the Army a source of information for administrative purposes; and governmental agencies an authoritative source of information for administering Federal and State laws pertaining to veterans. 

10.  Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it states that a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a soldier is in entry level status.  One definition of entry level status is the first 180 days of continuous active duty following a break of more than 92 days of active military service.

CONCLUSIONS:

1.  Under the law a citizen becomes a soldier by entering into a unique contract with his country.  The applicant’s contract with his country ended when he was discharged from the USAR based on orders published on 18 October 1991 with an effective discharge date of 15 April 1991.  Yet, due to a gross administrative error on the part of the government there did exist a unique relationship between the applicant and his country during the period 5 – 15 March 1993.

2.  The first government error occurred when the applicant was erroneously reported AWOL when he failed to report during Operation Desert Storm.  The applicant states he failed to report because he believed he had already been discharged.  As there is no evidence of any disciplinary action being taken against him for this AWOL and on 18 October 1991 orders were published honorably discharging him from the Ready Reserve effective 15 April 1991, the Board concludes his unit realized his AWOL status was in error.

3.  However, that first error was compounded by a second government error when the applicant’s unit failed to update his status and he continued to be listed by the U. S. Army Deserter Information Point as a deserter.  As a result, he was arrested by civilian authorities on 5 March 1993.  He was escorted to Fort Ord, CA and the Board agrees with his contention that the Army considered him a soldier on active duty until the mistake was realized and he was “released from active duty” 10 days later on 15 March 1993.

4.  Considering all the circumstances of this case, it would be appropriate to show that the applicant served on active duty for the period 5 through 15 March 1993.  It would also be appropriate to pay the applicant any pay and allowances he would have been due for being on active duty in pay grade E-5 for the period  5 through 15 March 1993 and to pay for his return transportation home.  Prior to the Board’s action, there was no date of accrual, or date in which the Government’s liability was fixed.  It was not until the Board exercised its discretionary equity power under Title 10 U. S. Code, section 1552 that the Army decided to recognize a term of service and provide monetary compensation to the applicant.  Accordingly, this government debt does not begin to accrue until the date Board action is taken.

5.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That the Commander, U. S. Army Reserve Personnel Command be directed to prepare such documents as are necessary and required to reflect the applicant enlisted in the Army and entered active duty on 5 March 1993 and served until  15 March 1993, when he was discharged, with an uncharacterized description of service, under the provisions of Army Regulation 635-200, chapter 5, by reason of Secretarial Authority.

2.  That the applicant be issued a DD Form 214 that summarizes his record of service.  Item 18, Remarks will contain the entry “Member inadvertently brought to active duty on 5 March 1993.”

3.  That the applicant be paid any and all active duty pay and allowances due him as a Sergeant, E-5 for the period 5 through 15 March 1993 and any and all travel and transportation allowances due him as a result of his discharge.

BOARD VOTE:  

__jns___  __mdm___  __mw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999028688	
SUFFIX		
RECON		
DATE BOARDED	20000524	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.