ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 August 2019 DOCKET NUMBER: AR20160019723 APPLICANT REQUESTS: add or correct the following on his DD Form 214 (Report of Separation from Active Duty), * attached to 8th Infantry Division (INF DIV), Headquarters and Headquarters Company (HHC), Commo Special Operations Airborne * performed operations for 3rd Cavalry (CAV) Armor, 8th Battalion (BN), 4th Infantry Division (INF DIV) * talk trap red OCT African camp omega North Atlantic Treaty Dirt * disable veteran * top secret security clearance * special forces airborne ranger * special operations recon expert etc. * war treaty and conflicts * correction of his first name X_____, X____, X____ (his name is transposed) * promotion * requital for Article (ART)15 * awards not reflected for achievements * retain duty * military jurisdiction at Fort Bliss, TX * authority and reason chapter 9, violation of code for homosexual * back pay for radiation exposure * lift reenlistment code * redress for back pay APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * four DD Form 149s (Application for Correction of Military Records) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States (U.S.)) * two National Personnel Records Center (NPRC) letters * four letters to the Army Review Boards Agency * seven letters to the Army Board for Correction of Military Records (ABCMR) * DD Form 214 * Veteran Affairs (VA) Form 21-4138 (Statement in Support of Claim) * letter to the Secretary of the Army * letter to the Department of Defense * extract of military records with notes and highlights * FG Form 6309 (Tactical Wire Operation Specialist Certificate) * orders 131-101, discharge order FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his company commander (CO CDR) instructed him to separate due to assumption of drug use. He provided a urine test, it was negative. His company made a determination without any consideration of facts or evidence. He completed operations successfully without obstruction. All of his assignments were completed while he was in the military. He was denied a military career and violated his rights. He was promised disability and compensation. He has requested his urinalysis records from the VA in St. Louis, MO but they could not locate a copy. a. He suffered an assault while on guard duty. A weapon was found next to post and he was accused of taking money from a man while on guard duty on post. He was stabbed by the person, he fought and mortal combat ensued. He acted in self-justifiable defense. The military police arrived and searched him and the premises, no money was found, and it was only hearsay. The intruder was intoxicated and accused him of stealing money which was not true. He received an Article 15 and a fine which should have been held inadmissible. His counsel was inefficient. Facts were not relied upon which was unfair and unjust. This affected his promotion, rank and other matters. While assigned to HHC, 4th Brigade (BDE), 4th INF DIV, his CO CDR threatened him to resign and separate from the military or face disciplinary action. He never violated the uniform code of Army rules and regulations for sale of or possession of any drives. He was placed in radiation exposure and would like to be compensated with back pay for all time loss. He has been under medical treatment for a long time at different locations, including the VA Medical Facility in El Paso, TX and has been diagnosed with cirrhosis of the liver, gall bladder and other damages to his body. His gall bladder has been removed. b. He was given a faulty discharge with a reenlistment (RE) code of RE-3 for committing homosexual act. The authority and reason reads chapter 9, AR 635-200 (Personnel Separations - Enlisted Personnel) and RE-3, paragraph 2-23 (5), AR 601-280 (Army Reenlistment Program). A stigma has been placed on him that he does not deserve. He was imposed a punishment under the wrong Army Regulations. He provided 13 detailed self-authored letters of his military service and events leading up to his discharge (detailed letters enclosed in packet). 3. The applicant provides: a. NPRC letter, dated 5 December 2016, shows that they were unable to provide him information concerning an investigation report. His request for his original medical record needed to answer his inquiry was not in their files and suggested that his medical record may be with the Department of VA. b. The extract of his military records shows with notes and highlights by the applicant. c. FG form 6309 (Tactical Wire Operation Specialist diploma), dated 10 November 1977, from the U.S. Army Signal Center, Fort Gordon, GA shows he successfully completed the course and was awarded military occupational specialty (MOS) 36K. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 10 August 1977. His DD Form 4 (Enlistment/Reenlistment Agreement - Armed Forces of the U.S.), dated 10 August 1977, block 1 shows his first name as X__. He signed his enlistment contract on 8 July and 10 August 1977 using the first name Xi __. b. He completed one station unit training at, Fort Gordon, GA, and he was awarded MOS 36K (Tactical Wire Operation Specialist) on 10 November 1977. c. He was assigned to HHC, 4th BDE, 4th INF DIV on 1 December 1977. He served in Germany from 2 December 1977 to 8 May 1979. d. DA Form 4187 (Personnel Action), dated 1 June 1978, produced by HHC, 4th BDE, 4th INF DIV, promoted him to private first class (PFC) effective 1 June 1978 with a waiver in accordance with (IAW) AR 600-200 (Enlisted Personnel Management System), chapter 7. e. DA Form 873 (Certificate of Clearance and/or Security Determination), granted him an interim clearance on 28 July 1978 and authorized him confidential access to expire on 13 September 1978. DA Form 2962 (Security Termination Statement and Debriefing Certificate), terminated his confidential access on 24 May 1979. He was unavailable for signature. f. The applicant's service record is void of documentation awarding him awards. g. His DD Form 214 shows he was discharged on 24 May 1979, under the provisions of AR 635-200, chapter 9, alcohol or other drug abuse (exemption policy) with an honorable character of service. He completed 1 year, 9 months, and 15 days of active service. His DD Form 214 does not show any awards or decorations. His DD Form 214 also shows in: * items 6a (Grade, Rate, or Rank) and 6b (Pay Grade), PFC and E-3 * item 7 (Date of Rank), 1 June 1978 * item 9c (Authority and Reason), chapter 9, AR 635-200, Separation Program Designator (SPD) JPB * item 10 (Reenlistment Code), RE-3 * item 16a (Primary Specialty Number and Title), 36K10 Tactical Wire Operation Specialist h. There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 5. By regulation, AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 9 contained the authority and outlined the procedures for discharging individuals because of alcohol or other drug abuse. A member who had been referred to alcohol and drug abuse prevention and control program for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts were no longer practical. 6. By regulation (AR 635-5-1), Soldiers separating under chapter 9 of AR 635-200 for alcohol or drug abuse are assigned Separation Code “JPB.” The RE Code associated with this type of discharge RE-3. 7. By regulation (AR 601-280), paragraph 2-23 applicants are ineligible for immediate reenlistment and promotion unless exception is authorized in accordance with paragraph 2-23b. Paragraph 9-5 (Reason and authority), the authority for discharge, chapter 9, AR 635-200, the reason as shown in AR 635-5-1 and RE Code 3 will be included in directives or orders directing members to report to the appropriate transfer activity for separation. 8. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. The instructions for completing the DD Form 214 stated: * items 6a and 6b enter the active duty grade and pay grade held at the time of separation * item 7 enter the date of rank for the grade in item 6a * item 9c enter the statutory and/or regulatory authority as cited in the directives authorizing the separation as outlined in AR 635-5 (Personnel Separations – Separation Documents) * item 10 enter the RE code IAW AR 601–210 (Regular Army and Army Reserve Enlistment Program * item 16a enter the MOS code, title, and date of award for warrant officers and enlisted personnel 9. There is no provision in AR 635-5 to enter the following on the DD Form 214: * attached to 8th INF DIV, HHC, Commo Special Operations Airborne * performed operations for 3rd CAV Armor, 8th BN, 4th INF DIV * talk trap red OCT African camp omega North Atlantic Treaty Dirt * disable veteran * top secret security clearance * special forces airborne ranger (unless completed schooling and awarded special qualification identifier V) * special operations recon expert etc. * war treaty and conflicts * retain duty * military jurisdiction at Fort Bliss, TX * back pay for radiation exposure (addressed in paragraph 11) * redress for back pay (addressed in paragraph 11) 10. AR 600-200, in effect at the time, prescribed instructions for preparing and maintaining the DA Form 2-1 (Personnel Qualification Record). The DA Form 2-1 is a snapshot of a Soldier's personnel data as it was at the time the form was produced and it was used as an internal management tool to assist officials processing a Soldier's assignment/reassignment, promotions, and career progression. The DA Form 2-1 is no longer active or accessible after a Soldier's discharge. The ABCMR limits corrective action to documents that can be individually reviewed after a Soldier's separation. Since the DA Form 2-1 is not normally accessible by individuals other than the Soldier, there is no basis for the Board to correct it. 11. A service member claiming additional pay and allowances previously accrued but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed. The claim is disallowed where government records necessary to either justify or refute it have been destroyed or become unavailable due to the lapse of time, and there is no other documentation available from any source to establish the liability of the United States. Furthermore, Title 31, U.S. Code, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. A change to this statue is not within the purview of this Board. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The analyst of record noted above the items that are not placed on the DD Form 214 in which the applicant requested relief. His record is absent any evidence showing he attended Ranger, Special Forces, and airborne training. His record shows the name listed on his DD Form 214 was used during his entire period of service. Based upon the preponderance of evidence, the Board agreed there is insufficient evidence to grant any relief in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 9 (alcohol or other drug abuse (exemption policy)) contained the authority and outlined the procedures for discharging individuals because of alcohol or other drug abuse. A member who had been referred to alcohol and drug abuse prevention and control program for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts were no longer practical. At the time of the applicant's separation, an honorable or general discharge was authorized. b. Paragraph 9-5 (Reason and authority), the authority for discharge, chapter 9, AR 635-200, the reason as shown in AR 635-5-1 and reenlistment (RE) Code 3 will be included in directives or orders directing members to report to the appropriate transfer activity for separation. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies SPD code JPB as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of AR 635-200, chapter 9, for alcohol or other drug abuse (exemption policy). The SPD/RE Cross Reference Table shows SPD Code JPB has a corresponding RE-3 Code. 4. AR 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214. Section III - Instructions for preparation and distribution of the Armed Forces of the United States (U.S.) report of transfer or discharge (DD Form 214). All available records will be used as a basis for the preparation of DD Form 214WS (Worksheet), including Da form 2-1 (Enlisted Qualification Record), DA Form 66 (Officer Qualification Record), and orders. It states for: * items 6a and 6b enter the active duty grade and pay grade held at the time of separation * item 7 enter the date of rank for the grade in item 6a * item 9c enter the statutory and/or regulatory authority as cited in the directives authorizing the separation as outlined in AR 635-5 (Personnel Separations – Separation Documents) * item 10 enter the RE code in accordance with (IAW) AR 601–210 (Regular Army (RA) and Army Reserve Enlistment Program) * item 16a enter the military occupational specialty (MOS) code, title, and date of award for warrant officers and enlisted personnel, for enlisted personnel enter the latest primary MOS evaluation/Skill Qualification Test Score (SQT)/Reenlistment Qualification Test Score (RQT) and date of score., if there is no test score, enter "none” 5. AR 601-280 (Personnel Procurement Army Reenlistment Program), in effect at the time, covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve. Paragraph 2-23 (Persons Ineligible for Immediate Reenlistment), applicants to whom the disqualification(s) apply, are ineligible for immediate reenlistment and requests for waivers will not be submitted. They are also ineligible for promotion unless exception is authorized IAW paragraph 2-23b. Appropriate copies of DD Forms 214 will be coded RE-3 unless otherwise indicated. Such persons may be eligible to apply for Regular Army Enlistment under the provisions of AR 601-210 (Personnel Procurement Regular Army Enlistment Program) at a later date. Subparagraph 2-23 (5), persons being discharged/separated under the provisions of chapters 6, 9, 10, 11, 13 or 14, AR 635-200 unless RE Code 4 applies under paragraph 2-24 this regulation. Appendix D (Reenlistment Eligibility Codes for Reenlistment in the RA) lists the RA RE eligibility codes: * RE-1 - fully qualified for immediate reenlistment * RE-1A - fully qualified for immediate reenlistment; however, ineligible to reenlist for 93 days after date of separation * RE-1B - fully qualified for immediate reenlistment except has not received a PMOS Evaluation Score during current term of service * RE-2 - fully qualified for immediate reenlistment; however, separated for convenience of Government under a separation authority which does not contemplate immediate reenlistment * RE-2A - fully qualified for immediate reenlistment; however, ineligible to reenlist in grade and for 93 days after date of separation * RE-3 - not eligible for immediate reenlistment unless waiver consideration is permissible and is granted 6. Title 31, U.S. Code, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019723 6 1