BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150010893 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X____ ___X_____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150010893 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20090019819, dated 3 August 2010. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the applicant continued on active duty after 4 April 1986 in a non-pay status for 1 month and 23 days, thereby becoming eligible for retirement based on 20 years of active Federal service, and b. paying him retired pay retroactive to 9 June 2015, the date of his current application to the Board, based on the rate applicable to him had he retired in 1986. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to paying the applicant retired pay retroactive to the date he would have completed 20 years of active Federal service in 1986. _____________X_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150010893 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of the Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20090019819 on 3 August 2010. Specifically, he requests correction of his records to show he was granted regular retirement for length of service. 2. The applicant states: a. On 4 April 1986, he was discharged from the Army after he had completed 19 years, 10 months, and 7 days of active Federal service. He specifically stated that he was discharged due to fraudulent enlistment; he executed an extension of service that took him to 20 years and 4 days of active Federal service. He is providing a memorandum from the Retention Noncommissioned Officer (NCO) at the time, which provides more information about the service extension. b. He was drafted in 1965 and served two tours in Vietnam. After serving honorably, he was not allowed to retire. He only needed 57 days of service to reach 20 years of active service. c. He was discharged after serving 20 years, 3 months, and 25 days of total service to our country. He believes this to be an injustice because his extension was justified based on retirement eligibility. d. He maintains that he was wrongfully accused of fraudulent entry and he should receive his retirement pay. e. The Board previously stated he had a Department of the Army (DA) imposed bar to reenlistment and that afterwards he fraudulently extended his service for the purpose of retirement. However, his last period of service after his 1981 reenlistment was from 29 September 1981 to 4 April 1986. This time frame put him over the 20 years of service needed for retirement. As such, there was no need for him to reenlist. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 8 November 1967 * DD Form 215 (Correction to DD Form 214) dated 11 April 1968 * DD Form 214 for the period ending 8 May 1969 * DD Form 214 (Report of Separation from Active Duty) for the period ending 12 January 1975 * DD From 214 for the period ending 10 January 1978 * DA Form 2339 (Application for Retirement), dated 23 August 1985, with a retirement approval endorsement * Order 011-027, issued by Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, SC, on 16 January 1986 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 April 1986 * memorandum from his former Retention NCO, dated 11 July 1986 * DD Forms 4 (Enlistment Contract – Armed Forces of the United States) * U.S. Army Recruiting Command (USAREC) Form 3 (Statement of Service – Enlisted Personnel) * DA Form 2-1 (Personnel Qualification Record – Part II) * letter from the ABCMR dated 10 December 2014 * letter from the National Personnel Records Center, St. Louis, MO, dated 12 February 2015 CONSIDERATION OF EVIDENCE: 1. 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. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR, in Docket Number AR20090019819 on 3 August 2010. 3. In support of this request, the applicant provides his application for retirement and retirement orders. These documents were not discussed in the applicant's previous Record of Proceedings (ROP). Therefore, these documents are considered new evidence that warrant consideration by the Board. 4. In the applicant's previous request, he contended he was wrongfully accused of fraudulent entry and discharged after 21 years of service without retirement. 5. In the previous ROP, it was noted that: a. The applicant was inducted into the Army of the United States on 10 December 1965. His DD Form 214 for this period of service shows he was released from active duty on 8 November 1967 and he was credited with 1 year, 10 months, and 29 days of active service. b. He was issued a DD Form 215 that amended his DD Form 214 for the period ending 8 November 1967 to show his total active service as 1 year, 10 months, and 25 days. This correction accounts for 4 days of time lost under Title 10, U.S. Code, section 972, from 16 to 19 November 1966. c. His DD Forms 214 show he served additional periods of active service from: * 26 April 1968 to 8 May 1969 * 9 May 1969 to 12 January 1975 * 13 January 1975 to 10 January 1978 * 11 January 1978 to 4 April 1986 d. On 27 April 1982, he received a DA imposed bar to reenlistment under the Qualitative Management Program (QMP). Four Enlisted Evaluation Reports and nine records of nonjudicial punishment (NJP) were cited as the basis for his bar to reenlistment. On 17 June 1982, he signed a DA Form 4941-R (Statement of Option) indicating he had been counseled and understood the options available to him as a result of the bar to reenlistment. He initialed block 1, indicating he would submit an appeal to the bar to reenlistment; however, no appeal was ever initiated. His expiration term of service (ETS) was listed as 28 September 1985. e. On 18 June 1985, he extended his enlistment for an additional 8 months and 3 days for the purpose of attaining sufficient service for retirement. f. On 4 November 1985, he was notified of his commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 7, Section V, for fraudulent entry. The commander cited as the basis for the separation action the applicant's concealment of a DA imposed bar to reenlistment that enabled him to extend his enlistment by 8 months and 3 days. After consulting with counsel, the applicant requested a hearing before an administrative separation board. g. On 22 January 1986, he appeared with counsel before an administrative separation board. The board reviewed the evidence, interviewed witnesses, conducted an examination of the applicant, and unanimously determined the applicant was undesirable for further retention in the military service because of fraudulent entry. The board recommended his discharge from the service because of fraudulent entry with issuance of an Under Other Than Honorable Conditions Discharge Certificate. The board noted that since the bar was imposed on the applicant, he had received NJP on four additional occasions. h. On 27 February 1986, the Commanding General (CG), U.S. Army Training Center, Fort Jackson, SC, requested the Commander, Military Personnel Center (MILPERCEN), Alexandria, VA (currently known as the U.S. Army Human Resources Command (HRC), Fort Knox, KY), disapprove the recommendation of the administrative separation board to issue an under other than honorable conditions discharge and issue an under honorable conditions (general) discharge instead. The CG stated that the evidence indicated the applicant acknowledged he was barred from reenlistment in 1982 under the DA QMP. He hand-carried his records from Germany to Fort Jackson, SC. When the applicant arrived at his new station, his records did not indicate he was subject to a DA imposed bar to reenlistment and, as such, he was allowed to extend his term of service for a period of 8 months and 3 days. Subsequently, a MILPERCEN computer listing was furnished to the local personnel office that reflected the applicant's barred status. As a result, separation action was initiated. i. On 27 March 1986, MILPERCEN, on behalf of Headquarters, Department of the Army (HQDA), approved the request to discharge the applicant under the provisions of Army Regulation 635-200, chapter 7, for fraudulent entry with the issuance of a General Discharge Certificate. j. On 4 April 1986, the applicant was discharged. His DD Form 214 for this period of service shows he was discharged under the provisions of Army Regulation 635-200, paragraph 7-17b(1), fraudulent entry, with his service characterized as under honorable conditions. The DD Form 214 also shows he completed 19 years, 10 months, and 7 days of active service. k. He provided, in support of his previous request, a letter of support, dated 11 July 1986, from his former Retention NCO in Mannheim, Germany, who stated he counseled the applicant in October 1984 regarding an extension of his enlistment. The Retention NCO offered that the applicant stated he had a DA bar to reenlistment in effect. However, after checking the applicant's file and requesting information from the Retain Control Branch, he found no record of the bar. The Retention NCO further stated that he could have extended the applicant, but he would have remained in Europe until his retirement date. He opined that errors existed in the applicant's military records and the applicant should not have to suffer those errors or the lack of benefits that 19-plus years of service should have earned him. 6. The Board concluded the following: a. The applicant argued that he was wrongfully accused of fraudulent entry. However, the evidence of record showed that a DA bar to reenlistment was imposed against him on 17 April 1982. On the same date, he signed the DA Form 4941-R indicating he had been counseled and understood the options open to him as a result of the DA bar to reenlistment. On 18 June 1985, he fraudulently extended his enlistment for the purpose of retirement. b. On 22 January 1986, he and his counsel appeared before an administrative separation board. The board unanimously determined he was undesirable for further retention in the military service because of fraudulent entry. HQDA approved the request to discharge him under the provisions of Army Regulation 635-200, chapter 7, with the issuance of a General Discharge Certificate. c. The evidence of record confirmed all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. There was no evidence and the applicant did not provide any evidence that showed his discharge for fraudulent entry was rendered in error or was unjust. d. The applicant argued that he was discharged after 21 years of service without a retirement. His record shows he received NJP on nine occasions and had four substandard evaluations at the time the DA bar to reenlistment was imposed. Normally, Soldiers who incur as many disciplinary infractions as those received by the applicant would have been discharged several years earlier under Army Regulation 635-200, chapter 14, for a pattern of misconduct. Additionally, he could have requested early separation prior to his ETS once HQDA imposed the bar to reenlistment. He extended his service knowing he could not lawfully acquire eligibility for retirement. The applicant's 21 years of service, a portion of which was fraudulently obtained, was not sufficient justification to automatically qualify him for an honorable 20-year retirement. 7. The following facts were not discussed in the previous ROP: a. On 11 January 1978, the applicant reenlisted for a period of 6 years, and on 29 September 1981, he reenlisted for a period of 4 years. His new ETS date was established as 28 September 1985. His DD Form 4/1 for his last reenlistment shows in block 9 (Previous Military Service Upon Enlistment/ Reenlistment) that he had 15 years, 7 months, and 10 days of active duty service as of 29 September 1981. Therefore, he would have attained 19 years, 7 months, and 10 days of active service as of his ETS. b. There is no evidence in the applicant's record that indicates his chain of command initiated a separation action against him based on misconduct. c. The applicant completed a DA Form 4941-R on 17 June 1982, indicating he had been counseled and understood the options open to him as a result of the DA bar to reenlistment. He initialed block 1 indicating he would submit an appeal to the bar to reenlistment. Option 1 of the DA Form 4941-R in effect at the time reads as follows: "I will submit an appeal. I understand this appeal must be submitted so as to arrive at MILPERCEN not later than 180 days before my ETS [in the applicant's case, 31 March 1985]. HQDA will automatically change this option to option 2a if my appeal is not received by DA 180 days prior to my ETS." d. Option 2a of the DA Form 4941-R reads as follows: "I intend to complete my remaining term of enlistment and will take no further action." e. He departed Germany for reassignment to Fort Jackson, SC, on or around 18 April 1985. 8. In support of his request for reconsideration, the applicant provides: a. A USAREC Form 3, prepared on 19 October 1976, which shows his periods of active duty service. b. A DA Form 2339, which shows that on 23 August 1985, he requested retirement based on length of service with an effective date of 1 June 1986. c. An endorsement, dated 29 August 1985, which approved his request for voluntary retirement effective 1 June 1986. d. Orders Number 011-027, issued by Headquarters, U.S. Army Training Center, Fort Jackson, SC, on 16 January 1986, which directed his retirement effective 31 May 1986. e. A DA Form 2-1, which shows his assignment history, including tours of duty in Vietnam from 21 November 1966 to 7 November 1967 and from 12 June 1971 to 22 March 1973. f. A letter from the National Personnel Records Center, St. Louis, MO, which informed him of the location of his military records. REFERENCES: 1. Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, set forth policy and prescribed procedures for denying reenlistment under the QMP. a. The QMP is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to enhance the quality of the career enlisted force, selectively retain the best qualified Soldiers to 30 years of active duty, deny reenlistment to non-progressive and non-productive Soldiers, and encourage Soldiers to maintain their eligibility for further service. b. The version of the regulation in effect at the time provided that bars to reenlistment for Soldiers identified by the selection boards and approved by the Deputy Chief of Staff for Personnel were imposed as directed by the CG, MILPERCEN. The effective date was the date the bar to reenlistment letter was mailed from the U.S. Army Enlisted Records and Evaluation Center. Reenlistments after the date of the bar letter were erroneous; similarly, promotions were void. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 7 provides that fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. 3. Title 10, U.S. Code, section 3914 (Twenty to thirty years: enlisted members), states that, under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service computed under section 3925 (Computation of years of service: voluntary retirement; enlisted members) of this title may, upon his request, be retired. DISCUSSION: 1. The evidence of record shows the applicant executed a 4-year reenlistment on 29 September 1981, which established his new ETS as 28 September 1985. He would have attained 18 years of active service on or around 20 February 1984, and 19 years, 10 months, and 10 days of active duty service as of his ETS date. 2. The evidence also shows that HQDA imposed a bar to reenlistment against him on 27 April 1982 and that he was given until on or around 31 March 1985 (180 days prior to his ETS) to submit an appeal to the bar. There is no evidence indicating he submitted an appeal. Accordingly, the option on his DA Form 4941-R automatically changed to option 2a. 3. The applicant's decision to continue his service on active duty until his ETS of September 1985, despite knowing that he could not attain sufficient service for retirement, was solely his own. He could have been discharged in 1982. 4. He provides documentation showing that he was approved for retirement for length of service; however, these documents were issued without the issuing authority's knowledge that he could not legally extend his term of service to attain sufficient service for retirement. Once it was discovered that he unlawfully extended his service for that purpose, the extension was rendered invalid. 5. Based on foregoing, the fact remains that he did not attain the required 20 years of service to qualify for a regular retirement based on length of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010893 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010893 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2