ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  25 July 2019

	DOCKET NUMBER:  AR20170003658


APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release of Discharge from Active Duty) to show:  

* his entire length of service history 
* his pay grade be restored
* early retirement
* copies of TDY orders
* appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

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 that his time served of 14 years, 8 months, and 6 days should be changed to reflect total time served of 15 years, which at the time made him eligible for early retirement drawdown.  He submitted the early retirement request a year before and did not receive a response.  He would also like his grade of private first class/E-3 to be restored to staff sergeant/E-6, the grade that he earned during his time in the service.  

3.  A review of the applicants’ service record shows:

	a.  He enlisted in the Regular Army on 15 January 1980. 

	b.  DA Form 2-1 (Personnel Qualification Record – Part II) shows three permanent change of station (PCS) assignments to Germany.  The form does not reflect any TDY assignments.

	c.	The complete fact and circumstances surrounding his discharge are not available for review with this case.  However, on 18 December 1993 summary special court-martial charges were preferred against him.  His DD Form 458 (Charge Sheet) shows he was charged with one specification of absent without leave (AWOL) from on or about 18 December 1993 until unknown date.  His rank is listed as SSG.

	d.  On 7/8 July 1994, the special court-martial was convened by his command.  The finding from the Army Report of Result of Trial was applicant guilty with intent to remain away permanently.  He was to be reduced to private first class (PFC).  The sentence was adjudged on 8 July 1994.

	e.  Special court-martial order number 10, dated 21 September 1994, states the applicant was guilty of AWOL for 29 days terminated by apprehension.  .  The sentence was reduction to the grade of PFC.  The sentence is approved and will be executed.

	f.  On 19 October 1994, the applicant was discharge from active duty in the rank/grade of PFC/E-3.  His DD Form 214 shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, with honorable condition (Character of Service) and completion of required active service (Narrative Reason for Separation).  He completed 14 years, 8 months, and 6 days of active service.  He had 29 days of lost time. 

4.  The applicant enlisted in the Army National Guard on 28 March 1995 and served in an active status until 24 April 1995.  His NGB Form 22 (Report of Separation and Record of Service) shows he was discharged in the rank/grade of PFC/E-3 under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management – Personnel-General), chapter 8-26f, with an general condition (Character of Service) and failure to meet medical procurement standard (Authority and Reason).  He completed 27 days of active service.

5.  The applicant’s record is absent copies of TDY orders.

6.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations

7.  The total Army Personnel Command (PERSCOM) (now called U.S. Army Human Resources Command) Message Number 93-164, dated 20 April 1993, announced the criteria for the fiscal year 1993 early retirement program (the first year the program was offered).  The program targeted specific occupational groups, grades, and years of service.  The early retirement program was strictly a management tool and never intended as an entitlement program for everyone with 15 to 20 years of service.  It stated that individuals who had already separated under provisions of any other voluntary or involuntary separation program were not eligible for early retirement.  That message also stated that soldiers with a DA Bar to Reenlistment or who are selected for separation under provisions of the QMP who have less than 18 years active federal service are ineligible to apply for early retirement.

8.  By AR 635-5 (Separation Documents) states in part, for item 12 (Record of Service) use extreme care in completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information.  For item 12a (Date entered Active Duty This Period) enter the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.  For item 12c (Net Active Service This Period) enter the amount of service this period, computed by subtracting item 12a from 12b (Separation Date This Period).  Lost time under Title 10 U.S. Code 972 and non-creditable time after ETS, if any, are deducted.  Such time will be identified in block 18.   

9.  By AR 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states applicants do not have a right to a formal hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

10.  By AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  Paragraph 3-8e addresses reduction in grade:  promotion authority, the grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that a fair and equitable decision in the case could be reached without a personal appearance by the applicant.

Based upon the documentary evidence available the Board concluded that the entire military service of the applicant was correctly reflected on his DD Form 214 and the NG Form 22.  The Board wished to inform the applicant that only active duty service is reflected on the DD Form 214, while NG service is reflected on his NG Form 22.

Based upon the misconduct within the record and reductions in grade being enforced in relation to those events of misconduct, the Board concluded there was a lack of justification to restore the rank of the applicant.  The rank reflected on his DD Form 214 correctly reflects the rank held by the applicant at the time of separation.

The Board found that the applicant never applied for early retirement to the proper authority and been granted it.  The Board wished to inform the applicant that early retirement has to be applied for and granted.  Since the applicant failed to show that he ever applied for early retirement, the Board concluded that no justification was present to grant that request.

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:

1. 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.
2.  Prior to closing the case, the Board did note the administrative notes below from the analyst of record and recommend that change be completed to more accurately depict the military service of the applicant.
	 
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.


ADMINISTRATIVE NOTE(S):

A review of the applicant's records shows his DD Form 214 omitted administrative entries in the Remarks block.  As a result, amend the DD Form 214 by adding in item 18 the entry "Continuous honorable service 19800115 to 19900827.”




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) 635-8 (Separation Processing and Documents) provides for the completion of the DD Form 214.

	a.  Block 12a: Date Entered Active Duty This Period.  Data sources are enlistment contract(s), initial order to active duty, active duty order, previously issued DD Forms 214, DA Form 1506 (Statement of Service – For Computation of Length of Service for Pay Purposes), and a complete review of the Soldier’s official record.  Enter the beginning date of the continuous period of active duty for issuance of this DD Form 214 (Certificate of Release of Discharge from Active Duty), for which a DD Form 214 was not previously issued.  Do not depend on basic active service date for this data item.  The basic active service date can be an adjusted date.

	b.  Block 12c: Net Active Service This Period.  Amount of service this period, computed by subtracting block 12a from 12b.

	c.  AR 635-8, currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment).

3.  PERSCOM message number 93-164, dated 20 April 1993, announced the criteria for the fiscal year 1993 early retirement program (the first year the program was offered).  The program targeted specific occupational groups, grades, and years of service.  The early retirement program was strictly a management tool and never intended as an entitlement program for everyone with 15 to 20 years of service.  It stated that individuals who had already separated under provisions of any other voluntary or involuntary separation program were not eligible for early retirement.  That message also stated that soldiers with a DA Bar to Reenlistment or who are selected for separation under provisions of the QMP who have less than 18 years active federal service are ineligible to apply for early retirement.

4.  Army Regulation (AR) 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to non-judicial punishment (NJP) under the Uniform Code of Military Justice.  Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

	a.  Paragraph 3-8e.  Reduction in grade.  Promotion authority. The grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction.  For the purposes of this regulation, a commanding officer has "promotion authority," within the meaning of Article 15(b), if he has the general authority to appoint to the grade from which reduced or any higher grade.

	b.  Paragraph 3-17 suspensions.  Ordinarily, the purpose of suspending punishment will be to grant to a deserving member a probational period during which he may show that he is deserving of remission of the suspended portion of his non-judicial punishment.  If, because of further misconduct by the member within this period, it is determined that remission of the suspended punishment is not warranted, the suspension may be vacated and the suspended portion of the punishment executed.  Action vacating a suspension will be recorded in accordance with notes 10 and 11, Part III, DA Form 2627 (Record of Proceedings).  Unless the suspension is vacated prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action.

	c.  Paragraph 3-20 describes setting aside and restorations.  This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.

	d.  Paragraph 3-21 limitations with respect to reduction in grade.  An unsuspended reduction in grade, imposed as NJP, becomes fully executed at the time it is imposed.  Accordingly, there can be no remission of an unsuspended reduction.

	e.  Paragraph 3-22 who may act on an appeal.  An appeal under Article 15 will be acted upon by the authority next superior to the officer who imposed the punishment if the person punished is still of the command of that officer at the time he appeals, but if the punishment has been imposed under a delegation of the superior's power to impose NJP (see para 128, MCM, 1969) the appeal will be acted upon by the authority next superior to him.
5.  By Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) prescribes the policies and procedures:

a. Soldiers who enlist or reenlist in the Regular Army or Army Reserve in a higher grade than entitled will be reduced to the appropriate grade.

	b.  A reduction board is required for Soldiers in grades SGT through SGM for reduction for misconduct (civil conviction) under paragraph 6–4 (except under table 6–1 at end of chapter, and for inefficiency under para 6–5).  Board appearance, however, may be declined in writing, which will be considered as acceptance of the reduction board’s action. Individuals in grade of CPL and below may be reduced without action by a board.

	c.  A court-martial sentence of Soldiers which, as approved by the convening authority, includes a punitive discharge, confinement, or hard labor without confinement, carries a reduction to the lowest enlisted pay grade. Reduction will be effective on date of approval by the convening authority (Article 58a of the UCMJ). The SIDPERS reduction transaction will be submitted by losing commander.

	d.  A Soldier, whose sentence to a punitive discharge, confinement, or hard labor without confinement is approved, may be probationally retained in the grade held at time of sentencing or in any intermediate grade.  However, the convening authority must do the following:  (1) Suspend execution of sentence.  (2) Provide in his or her action that the Soldier will serve in that grade during the period of suspension, and thereafter, unless the suspension is vacated before its termination.


ABCMR Record of Proceedings (cont)	 AR20170003658


4


1