ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 February 2020 DOCKET NUMBER: AR20170016539 APPLICANT REQUESTS: correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her narrative reason for separation as "reduction in force." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Letter, dated 1 September 2017 * DD Form 3286 (Statement for Enlistment – U.S. Army Enlistment Program), dated 22 November 2010 * Letter, Commander, Headquarters, 3rd Battalion, 11th Infantry Regiment, Fort Benning, GA, dated 8 June 2011 * DD Form 214, dated 24 June 2011 REFERENCES: 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. 2. Army Regulation 635-200 (Active Duty Enlisted Separations), effective 6 July 2005 and in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-9 (Uncharacterized Separations) stated a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. b. Paragraph 7-16 (Defective or Unfulfilled Enlistment or Reenlistment Agreements), stated: 1 (1) A defective enlistment agreement exists when the Soldier is eligible for enlistment in the Army but does not meet the prerequisites for the option for which enlisted. This situation exists when the following occurs: (a) a material misrepresentation by recruiting personnel, upon which the Soldier reasonably relied, resulting in the Soldier being induced to enlist for that option; or (b) an administrative oversight or error on the part of the recruiting personnel, in which the Soldier did not knowingly take part, in failing to detect that the Soldier did not meet all the requirements for the enlistment commitment. (2) An unfulfilled enlistment commitment exists when the Soldier receives a written enlistment commitment from recruiting personnel for which the Soldier is qualified but which cannot be fulfilled by the Army through no fault of the Soldier. c. Paragraph 16-7 (Early Separation Due to Reduction in Force, Strength Limitations, or Budgetary Constraints) stated Soldiers may be separated prior to expiration of enlistment or fulfillment of active duty obligation when authorization limitations, strength restrictions, or budgetary constraints require the Regular Army or Reserve Component active duty enlisted force to be reduced in number. d. Section II (Terms) describes entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. 3. Army Regulation 635-5 (Separation Documents), effective 30 September 2000 and in effect at the time, prescribed the policies and procedures for preparation and distribution of the DD Form 214. The specific instructions for item 28 (Narrative Reason for Separation) stated this entry is based on regulatory or other authority and can be cross-referenced with Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes). 4. Army Regulation 635-5-1, effective 10 January 2008 and in effect at the time, prescribed the SPD codes and authorities and reasons for separation from active duty. Table 2-3 (SPD Codes Applicable to Enlisted Personnel) lists the SPD codes applicable to enlisted personnel. a. Army Regulation 635-200, chapter 7 (Defective Enlistments/Reenlistments and Extensions), section III (Erroneous Enlistments, Reenlistments, or Extensions), is the regulatory authority for the narrative reason for separation of "Defective Enlistment Agreement" and is assigned SPD code KDS (Defective Enlistment Agreement). b. Army Regulation 635-200, paragraph 16-7, is the regulatory authority for the narrative reason for separation of "Reduction in Force" and is assigned SPD code JCC (Involuntary) or KCC (Voluntary). FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR 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 she enlisted in the U.S. Army on 22 November 2010 as an officer candidate in military occupational specialty (MOS) 09S (Commissioned Officer Candidate). She completed basic training in March 2011. She then went to Fort Benning, GA, to continue her officer candidate training. During the third week of classes, 20 officer candidates, including her, were called from their class to go before a "Best Qualified Board." They entered a room where a lieutenant colonel and other military personnel asked about three questions of the officer candidates. If the lieutenant colonel didn't like the answers, the officer candidates were released from the Officer Candidate School (OCS) without the option to be recycled. Only two officer candidates passed; the other candidates were released. Bravo Company consisted of about 170 candidates and only 76 candidates graduated. They were later told there were many candidates and few positions for officers. 3. Her DD Form 3286 shows in: a. paragraph 1 (Acknowledgment), she was enlisting for the U.S. Army Officer/ Warrant Officer Enlistment Program. Her enlistment for the program assured that, provided she met the required prerequisites, she would receive training in MOS or career management field 09S. b. paragraph 6 (Applicable to All Applicants Enlisting under This Program), she acknowledged: "I understand that if my enlistment contract cannot be fulfilled through no fault of my own, the alternatives available to me will be provided in Army Regulation 635-200. I understand that I will have a period of thirty days from the time I am notified, become aware or reasonably should have become aware that my selected training (above) cannot become fulfilled, to elect an alternative training program for which I am qualified and a vacancy exists, or request a separation. This thirty day period may be extended by the general courts martial convening authority when necessary to determine the availability of my selected alternative. If I make no election within the thirty day period, my claim will be deemed to have been waived." 4. The letter to the applicant from the Commander, Headquarters, 3rd Battalion, 11th Infantry Regiment, dated 8 June 2011, memorializes the circumstances surrounding the applicant's discharge from the U.S. Army in accordance with Army Regulation 635-200, paragraph 7-16. This provision allowed the applicant to voluntarily elect to be discharged because the Army failed to comply with the terms of her enlistment contract. She was discharged through no fault of her own. The applicant met every standard that the Army placed before her. However, the Army did not have enough officer commissions available to accommodate the current number of officer candidates. Therefore, the Army was forced to breach a number of enlistment contracts. Her agreement, unfortunately, was one such breached contract. There should be no adverse inference made against her because of her decision to voluntarily separate from the Army under the circumstances. Further, it is Army policy that persons separated from the Army with less than 180 days of active service be given an "uncharacterized" discharge. The term "uncharacterized" does not suggest that her time in service was anything less than fully honorable. Again, no adverse inference should be drawn against her because of her "uncharacterized" discharge. 5. The applicant's DD Form 214 shows she was honorably discharged on 24 June 2011 under the provisions of Army Regulation 635-200, chapter 7, section III. She completed 7 months and 3 days of net active service during this period. Item 26 (Separation Code) shows she was assigned SPD code KDS. Item 28 (Narrative Reason for Separation) shows the reason as "Defective Enlistment Agreement." 6. An advisory opinion was obtained from the Chief, Officer Accessions Policy Branch, Department of the Army Office of the Deputy Chief of Staff, G-1, wherein he stated: a. The applicant enlisted for OCS via a signed DA Form 3286 on 22 November 2010 under MOS 09S. She was separated during OCS under the provisions of Army Regulation 635-200, paragraph 7-17 (should read paragraph 7-16), as a "Defective Enlistment Agreement." This is annotated on her DD Form 214, block 28, dated 24 June 2011. b. Their research of the applicant's military records included separation memorandums signed by her battalion commander, dated 8 June 2011; her brigade commander, dated 11 June 2011; a legal review, dated 15 June 2011; and a counseling statement signed by her company commander, dated 3 June 2011. Of note, these documents mentioned an OCS graduation requirements memorandum, dated 3 March 2011, which stated the potential for a "Best Qualified Board" to determine continued training. The board for the applicant was justified as required due to the Army's lack of requirements. The OCS does not practice this anymore. Today, OCS routinely screens the bottom five candidates of each class to solely maintain quality, not to reactively separate due to allocations. c. The Officer Accessions Policy Branch recommended full administrative relief and approval of the applicant's request to correct her record. The applicant was eligible for enlistment and met the prerequisites for the OCS option. Army Regulation 635-200, paragraph 7-16, should not have applied to her DD Form 214 narrative reason for separation. 7. On 5 February 2020, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. She did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, her record of service, the notification memorandum from the commander and the reason for her separation. The Board considered the review and conclusions of the HQDA DCS G1 advising official, to include the change in practice related to the “Best Qualified Board.” The Board found insufficient evidence to show that the applicant’s separation was due to a reduction in force. Based on a preponderance of evidence, the Board determined that the reason for the applicant’s separation created an injustice and that a correction was necessary. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 the DD Form 214 for the period of service ending 24 June 2011 as follows: - Item 25 (Separation Authority) – AR 625-200, Chap 5; - Item 26 (Separation Code) – JFF - Item 28 (Narrative Reason) – Secretarial Authority 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 the applicant’s requested reason for separation. 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. //NOTHING FOLLOWS//