IN THE CASE OF: BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150011701 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 IN THE CASE OF: BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150011701 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 with a separation date of 16 July 1986 as follows: * Item 5 (Date of Birth) - delete the current entry and enter his DOB as shown on his DD Form 4 * Item 6 (Reserve Obligation Termination Date) - delete "N/A" and enter "00 00 00" * Item 12e (Total Prior Inactive Service) - delete "00 00 16" and enter "00 00 26" 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 his date of discharge and his separation code. _____________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. IN THE CASE OF: BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150011701 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 the following corrections to his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 16 July 1986: * change his date of birth (DOB) * correct his Reserve Obligation Termination Date * correct his date of discharge and record of service * correct his separation code 2. The applicant states his DOB on his DD Form 214 is incorrect. His Reserve obligation date is not listed and DD Form 214 is missing 1 year of service. His separation code is also wrong. 3. The applicant provides: * DD Form 214 * a letter, dated 4 February 2013, from the National Personnel Records Center, St. Louis, MO * a letter, dated 5 November 2013, from the Department of Veterans Affairs (VA) 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 Army Board for Correction of Military Records (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. Item 11 (DOB) of the applicant's DD Form 1966 (Application for Enlistment - Armed Forces of the United States) shows he was born in 1965. Item 40b (Age) of his DD Form 1966 shows his DOB was verified by his recruiter using a DD Form 372 (Request for Verification of Birth). 3. On 17 October 1984, the applicant enlisted in the Army Reserve Delayed Entry/Enlistment Program (DEP). His DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States) shows the same DOB that is shown on his DD Form 1966. He was in the DEP for 26 days. 4. On 13 November 1984, he enlisted in the Regular Army for 4 years. 5. On 26 March 1985, he was assigned to Headquarters and Headquarters Battery, 3rd Battalion, 35th Field Artillery in Germany. 6. The applicant received non-judicial punishment (NJP) on: * 20 March 1986, for seven specifications of failing to go at the time prescribed to his appointed place of duty * 24 April 1986, for wrongfully possessing military ammunition * 1 May 1986, for two specifications of failing to go at the time prescribed to his appointed place of duty 7. On 17 July 1986, the applicant departed absent without leave (AWOL) from A Battery, 3rd Battalion, 35th Field Artillery. On 16 August 1986, he was dropped from Army rolls. On 23 November 1986, he was returned to military control in Black Pool, England. On 26 November 1986, he was transported to the continental United States and assigned to Fort Dix, NJ. 8. On 3 December 1986, he was placed on excess leave with a leave address in La Habra, CA. He provided a DA Form 31 (Request and Authority for Leave) that was approved by the Commander, U.S. Army Headquarters Command, Fort Dix. 9. A letter, dated 9 December 1986, from Headquarters, U.S. Army Training Center and Fort Dix to the applicant's wife in Lancashire, England, informed her that her husband recently arrived at Fort Dix for separation from the Army. Certain documentation required for his separation processing had not been received; therefore, he was granted excess leave on 3 December 1986. It was expected that the requisite documentation would be available shortly and her husband would be separated from the Army in absentia. 10. The applicant's separation package for a discharge under the provisions of chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) is not available for review. 11. A letter, dated 10 July 1990, from the U.S. Army Deserter Information Point, U.S. Army Enlisted Records and Evaluation Center (EREC) notified the applicant that a review of his military personnel records failed to produce a record of his discharge from the service. Available documentation indicated that he was in a status of desertion and he was eligible for a discharge in absentia. It was anticipated his discharge would be under other than honorable conditions. a. Prior to the issuance of a discharge certificate he was offered the opportunity to submit a statement in his own behalf. His statement could include any extenuating or mitigating circumstances he felt should have a bearing on the type of discharge to be issued. b. He was advised that if he desired to return to military control to resolve his military status he should report to the nearest military installation within his area of residence and have in his possession a copy of the letter and any documentation pertaining to his military service. 12. In response to the above notification, the applicant submitted a statement indicating that. a. His wife developed complications in her third month of pregnancy as a result of epileptic seizures. After meeting with his commanding officer, it was decided that his wife would return to her home in England while he began out-processing under a chapter 13 discharge. b. He had almost finished out-processing and his unit was in the field when he was contacted by his wife's mother who informed him that his wife was having a great deal of trouble. He felt, at the time, that he had no choice but to be with his ill wife. He deserted the Army in West Germany and went to England where he lived with his wife and daughter. c. In November 1986, he turned himself in to the Black Pool police who contacted military police who came and took him into custody. He was sent to Fort Dix to be out-processed and discharged. He was held for about 1 week when the commanding officer asked him to explain the circumstances involved in his desertion. The commander took his military identification, told him he was not allowed on any military bases, and that he would be discharged in absentia. He was released immediately to provide his own transportation back to his previous home in California. d. A few days later he received a call from the commanding general's secretary informing him that his wife had sent a letter to the commanding general regarding the applicant's status. He informed the secretary of the situation and a letter was sent to his wife. Since that time he has had no contact with the military. e. The applicant desired to resolve this matter as soon as possible and be discharged in absentia. 13. On 30 July 1990, the applicant faxed four documents to EREC. a. An undated note that indicated the applicant arrived at the Personnel Control Facility on 23 November 1986 from Black Pool, England. The note indicated the applicant was already discharged in May 1986 under Chapter 13. b. A letter, dated 21 September 1987, from Company A, U.S. Army Personnel Control Facility, Fort Dix, NJ to American Express Bank, Ltd stated the applicant was no longer a member of the Army or the Reserve Components. He was discharged on 9 May 1986 and the Army no longer had control or authority over him. c. An AWOL - Deserter Verification Sheet, dated 3 December 1986, that contains a note in the Remarks section indicates the applicant was approved for a chapter 13 on 9 May 1986. d. A DA Form 31 showing he was placed on excess leave on 3 December 1986. The leave was approved by the Commander, U.S. Army Headquarters Command, Fort Dix. 14. On 4 October 1990, a memorandum was submitted to EREC through the Chief, U.S. Army Deserter Information Point and the Chief, Records Services Division. a. The memorandum outlined the applicant's military service from the date of his enlistment in DEP through the date of his return to military control on 26 November 1986. b. A check of all available records did not produce evidence of discharge documents issued for the applicant. c. All documents pertaining to this case were forwarded to the Separations Branch (U.S. Army Military Personnel Center) on 7 August 1990 for an approval of discharge in absentia. On 24 September 1990, an endorsement from Separations Branch advised the Soldier should be discharged under the provisions of chapter 13, AR 635-200 effective 9 May 1966 [sic], with a general discharge under honorable conditions. d. On 1 October 1990, based on a telephone conversation with Mr. N____, Separations Branch, it was determined that the correct discharge date should be 16 July 1986, the day prior to the applicant being reported AWOL. 15. In an undated letter from the U.S. Army Deserter Information Point, the applicant was informed that after a review of his records and the documentation he presented it was determined that he should have been discharged on 16 July 1986, which was the day prior to the date he was reported AWOL by his unit in Germany. 16. Headquarters, U.S. Army EREC Orders 86-1, dated 4 October 1990, discharged the applicant from the Regular Army effective 16 July 1986. The orders stated he was not entitled to pay and allowances from 16 July 1986 through 4 October 1990. The applicant was issued a DD Form 214 with the following information. * Item 5 (DOB) - shows a completely different DOB than that shown on his DD Form 1966 and DD Form 4 * Item 6 (Reserve Obligation Termination Date) contains the entry "N/A" * Item 12b (Separation Date This Period) shows the date 16 July 1986 * Item 12e (Total Prior Inactive Service) contains the entry "00 00 16" * Item 26 (Separation Code) contains the entry "JHJ" REFERENCES: 1. AR 635-5 (Separation Documents), in effect at the time his DD Form 214 was issued, established the standardized policy for preparing and distributing the DD Form 214. It states for: a. Item 5 - enter six-digit number; year, month, and day without spaces or slashes. b. Item 6 - refers to the completion date of the statutory service obligation incurred by all personnel on initial enlistment or appointment into the Armed Forces. An individual with no previous military service who is enlisted or appointed in the Armed Forces on or after 1 June 1984 must serve a period of 8 years. The military service obligation (MSO) starts on the date of initial enlistment in the Regular Army, Army National Guard, and the U.S. Army Reserve to include the DEP. DEP time is credited in computing this date. For Soldiers discharged, dismissed, or dropped from Army roles, or with an expired MSO enter "00 00 00." c. Item 12b - enter the separation date for the period of the DD Form 214. d. Item 12e - enter the total amount of prior inactive service, less lost time, if any. DEP time which began on or after 1 January 1985 was not creditable service for pay purposes and was not entered in this block. 2. AR 635-5-1 (Separation Program Designators (SPD)), in effect at the time of the applicant's discharge, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs to be used for these stated reasons. The regulation shows the SPD code of "JHJ" as shown on the applicant’s DD Form 214 denotes an involuntary discharge and specifies the narrative reason for discharge as unsatisfactory performance and the authority for discharge under this SPD is AR 635-200, chapter 13. 3. AR 635-200, in effect at the time, set forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 provided for separation due to unsatisfactory performance when, in the commander's judgment: * the individual would not become a satisfactory Soldier * retention would have an adverse impact on military discipline, good order, and morale * the service member would be a disruptive influence in the future * the basis for separation would continue or recur * the ability of the service member to perform effectively in the future including potential for advancement or leadership, was unlikely * Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. DISCUSSION: 1. The entries on the applicant's DD Form 1966 and DD Form 4 show the DOB entered on his DD Form 214 is in error. The DOB on his DD Form 214 should be corrected to show the DOB listed on his DD Form 1966. 2. The applicant was discharged and the correct entry for item 6 of his DD Form 214 is "00 00 00." 3. On 10 July 1990, the U.S. Army Deserter Information Point notified the applicant there was no record of him being discharged from the Army. He was offered an opportunity to submit a statement on his own behalf to include any extenuating or mitigating circumstances that he felt should have a bearing on his case. 4. Based on the applicant's statement in 1990 and four documents he faxed to EREC on 30 July 1990, it appears the applicant was being processed for discharge under the provisions of chapter 13 of AR 635-200 in May 1986. There is no discharge processing package in his military personnel records. 5. Upon a review of all of the applicant's military records and the documentation he submitted, the Separations Branch determined he should have been discharged on 16 July 1986, the day prior to the date he was reported AWOL. This precluded any time lost from being entered on his DD Form 214. 6. The separation code on his DD Form 214 correctly reflects the reason for his discharge. 7. The 26 days the applicant spent in the DEP should be correctly shown in item 12e of his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011701 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011701 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2