PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 February 1999                   
	DOCKET NUMBER:   AR1999014943

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Carol Jo Suiter		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, in effect, that he be reinstated in the active army at the rank of Staff Sergeant, E-6, that his reenlistment contract be fulfilled with back pay minus his National Guard pay, that the time he has lost as a result of his erroneous discharge be counted towards his basic active service date (BASD), that he receive his final pay that was withheld from him upon his discharge and that he be reimbursed all debts that were withheld from his National Guard pay, and that he receive all his bonus payments that he would have received had he not been discharged.

3.  The applicant states that he was wrongly misled into believing he had no option but to leave active duty.  If somebody had checked with the Immigration and Naturalization Service, they would have found out he could have obtained his citizenship within 48 hours.  He lost out on a promising career.  He has applied to return to active duty but has been told he will be drastically reduced in rank.

4.	The applicant’s military records show that he was born in Canada.  He initially enlisted in the Regular Army on 21 October 1987.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  He was honorably discharged on 8 July 1988; the narrative reason was “aliens not lawfully residing in U. S.”

5.	On 13 September 1989, the applicant reenlisted in the Regular Army for        4 years.  His previous discharge was noted in his enlistment documents.  He also acknowledged that he would only be allowed to reenlist or extend if his total period of federal military service did not exceed 7 years unless he obtained U. S. citizenship.  (This period was changed at some point after this date to 8 years).

6.	The applicant completed Air Assault School in 1990.  

7.	The applicant served in Southwest Asia from 1 November 1990 – 23 April 1991.

8.	The applicant completed Basic Airborne training and Ranger training in 1992. Also in 1992, he completed the Primary Leadership Development Course and was selected for the Commandant’s List.  He was promoted to Sergeant, E-5 on 1 December 1992.  

9.	On 8 September 1993, the applicant reenlisted for 3 years.  No note of a time limit due to his alien status is made on his enlistment documents.  His enlistment documents did note his home of record as British Columbia, Canada.

10.	 The applicant completed the Jumpmaster and Pathfinder courses in 1994.  He was awarded a primary MOS of 11B (Infantryman) and 13B was made his secondary MOS.  He was awarded the Expert Infantryman Badge in October 1994.

11.  On 14 February 1995, the applicant reenlisted for 6 years with a selective reenlistment bonus of 2B for MOS 11B.  No note of a time limit due to his alien status is made on his enlistment documents.  His enlistment documents did note his home of record as British Columbia, Canada.

12.  The applicant’s promotion packet is not available; however, his Personnel Qualification Record, part I, does show that he had a promotion indicator code of “P.”

13.  On 13 September 1995, the Brigade Retention Non-Commissioned Officer prepared a memorandum informing the S-1 (Brigade Personnel) that, as a foreign national serving in the U. S. Army, the applicant was only authorized to serve for 8 years prior to obtaining U. S. citizenship.  Since his BASD was         18 January 1989, his citizenship control point was 17 January 1997.  He had been told that he would not be able to obtain his citizenship within the maximum time limit.

14.  Based upon this information, the applicant was honorably discharged due to erroneous entry on 11 October 1995, in pay grade E-5.  He had completed          6 years, 9 months and 17 days of creditable active service and had no lost time.
Apparently, his reenlistment bonus was to be recouped and as a result a partial recoupment was made by withholding his final pay.

15.  At some point, the applicant enlisted in the Tennessee Army National Guard. At that time, a further debt collection action was initiated.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 7 contains the authority and outlines the procedures for discharging individuals because of erroneous enlistments, reenlistments or extensions.  It states that a soldier may be separated on the basis of an erroneous enlistment if the enlistment/reenlistment would not have occurred had the relevant facts been known by the Government or had appropriate directives been followed and it was not the result of fraudulent conduct on the part of the soldier.

17.  On 22 November 1994, an Executive Order had been issued authorizing the expedited naturalization of aliens who served in an active duty status during the Persian Gulf conflict.

18.  On 18 December 1996, the applicant was naturalized as a U. S. citizen.

19.  In response to an Inspector General (IG) Action Request, the Tennessee Army National Guard IG, after consultation with the Total Army Personnel Command (PERSCOM) IG and the U. S. Army Recruiting Command (USAREC) IG, felt that the applicant’s separation from the Army and the resulting debt obligation could have been avoided through an action to expedite his request for citizenship.  Those IGs felt he had a strong case for appeal of the actions taken in connection with his discharge and recommended he appeal to this Board.

CONCLUSIONS:

1.	The Board concludes that an injustice exists in this case.  The applicant was an above average combat arms soldier.  He had no record of any disciplinary actions.  He had an admirable record of school/course attendance in his chosen branch that would indicate he fully intended to make a career in the U. S. Army.

2.  There is no evidence to show the applicant attempted to hide his alien status. It was noted and he did acknowledge on his first reenlistment contract that he could remain in the U. S. Army for only a total of 7 years (later changed to           8 years), but this restriction was not noted on either of his two subsequent reenlistment documents.  

3.  The Board believes, and as was actually proven by his subsequent attainment of U. S. citizenship on 18 December 1996, that had he been given the correct information while he was still on active duty concerning expedited naturalization to which he was entitled, he would have attained his citizenship before the        17 January 1997 deadline. 

4.  Since the applicant’s enlistment would not have expired until 13 February 2001, and since there is good reason to conclude that but for his premature discharge he would have remained on active duty, it appears appropriate and proper to void his premature discharge, thus reviving his old enlistment contract, to show that he continued to serve on active duty under that enlistment and that he was ordered a permanent change of station to his home of record on            11 October 1995 pending further orders and he be granted active duty credit for that time.  It would also be appropriate to return to him all reenlistment bonus monies that have been withheld from him and to pay him any further bonus due, and, if he had held promotion list status at the time of his discharge and would have met or exceeded the promotion point cutoff score at anytime after his premature discharge, that he be promoted to Staff Sergeant, E-6 on that effective date and be entitled to any additional pay and allowances that would be due him because of that promotion. 

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

RECOMMENDATION:

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

     a.  voiding the discharge which was issued to the applicant on 11 October 1995 and showing he was ordered a permanent change of station to his home of record on this date pending further orders;

     b.  reinstating the applicant on active duty provided he otherwise meets the retention physical fitness standards;

     c.  determining if the applicant was on a promotion standing list to Staff Sergeant E-6 and if so, if he would have met or exceeded the cutoff score for such promotion at any time between the date of his premature discharge and the present and, promoting him to Staff Sergeant, E-6 on that effective date if he had met or exceeded that score; 

     d.  reimbursing to him the enlistment bonus that was recouped upon his discharge as well as any amount of the bonus that he did not receive; 

     e.  returning to him all other appropriate benefits and property he lost as the result of his premature discharge; and

     f.  placing in his Official Military Personnel file an adequate explanation concerning the gap in his enlisted evaluation reports from the date of his last report until the date of his return to an active duty status to explain that this gap was not his fault and to ensure that he should not be prejudiced thereby in the consideration of any future personnel actions.

BOARD VOTE:  

__INW__  __VBC___  __CJS__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Irene N. Wheelwright
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999014943	
SUFFIX		
RECON		
DATE BOARDED	19990211	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	128.00	
3.		
4.		
5.		
6.