ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 August 2019 DOCKET NUMBER: AR20190001912 APPLICANT REQUESTS: * reconsideration of his previous request for separation pay * as a new request, approval of education entitlements APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self authored letter in lieu of DD Form 149 (Application for Correction of Military Record) * Army Board for Correction of Military Records (ABCMR) Docket Number AR20150005504, dated 21 January 2016 * Email, dated 10 April 2018 * Self-authored letter, dated 20 April 2018 * Excerpt, chapter 30, section 3031 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160005190 on 15 February 2018. 2. The applicant states in pertinent part: * the response in ABCMR Docket Number AR20160005190 was based on information from an improper year to deny his request * he has attached evidence of facts and regulations that support his position and claim of injustice caused by military superiors and the mishandling of his military records * he received his official military personnel records in October 2014 and his medical records in July 2014 after 30 years of requesting them * he could not use his education or any other benefits for the lack of documentation * the Board decision letter states, he was involved in a very bad accident which caused him to be barred from reenlisting in the Army, however, he was barred from reenlisting as a senior noncommissioned officer staff sergeant (SSG)/E-6 on 1 November 1982 and the accident was on 14 December 1982 * the decision letter states, he did not provide evidence separation pay was authorized in 1983, however, the Defense Officer Personal Management Act (DOPMA) of 1980 states a member who is discharged or released with greater than 5 but less than 20 years of active service is entitled to separation pay * the decision letter states the Reenlistment Code (RE Code) JBK on his DD Form 214 (Certificate of Release or Discharge from Active Duty) is listed as his separation code * military regulations state a bar to reenlistment is to be reviewed every 90 days, and a report given 30 days prior to departure or separation from the unit which the bar came from, this never happened and should be removed because his records contain no disqualifying documents * at the time of his discharge he was fully qualified for retention in any other unit in the Army and should have been allowed to reenlist * the decision letter states he should have entered into a written agreement to serve in the Ready Reserve for 3 years after his involuntary separation; Department of Defense Instruction (DODI) 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay) and is based on information from the wrong years 3. A review of the applicant’s service records show the following on: * 3 February 1971 – the applicant enlisted in the Regular Army and served in various stateside and overseas assignments (Title 38, Chapter 34 (Veterans’ Educational Assistance) was in effect) * 30 May 1980 – Orders Number 135-44, issued by the U.S. Army Regional Personnel Center, Wiesbaden, promoted the applicant to the rank of SSG with a date of rank of 13 May 1980 * DA Form 2-1 (Personnel Qualification Record) shows in section 1 (Identification Data), item 4 (Assignment Considerations), undated, “Service member not recommended for further service,” reference Army Regulation (AR) 601-280 (Army Reenlistment Program) * 1 November 1982 – the applicant’s record contains a memorandum endorsed by the senior commander, Headquarters, 7th Medical Command, approving a bar to reenlistment under the provisions of AR 601-208, chapter 1, section 8, and authority of Headquarters, Department of the Army * The applicant’s record is void of a DA Form 4126 (Bar to Reenlistment Certificate) * 16 December 1982 – the applicant accepted Non-Judicial Punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order, and his punishment was reduction to the grade of sergeant (SGT)/E-5 * 10 January 1983 – the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for operating a vehicle while drunk, and his punishment was reduction to the grade of specialist four (SP4)/E-4 * 18 February 1983 – the applicant was honorably discharged from active duty by reason of expiration term of service, he completed 3 years, 6 months, and 29 days of active service with 8 years, 5 months, and 17 days of prior active service, item 26 (Separation Code) shows JBK, and item 27 (RE Code) shows 3C * Medical records are not available for review with this case 4. The applicant petitioned the Board in ABCMR Docket Number AR20150005504 to award him separation pay and was denied by the Board on 21 January 2016. 5. The applicant provides: * ABCMR Docket Number AR20150005504 discussion and conclusions page showing a partial grant to change his military occupational specialty, and denial of separation pay, foreign service and correction of his active duty service * Email from a U.S. Military Entrance Processing Command Inspector General official informing the applicant he was not able to find any regulations dating back to the applicant’s period of service and to contact a local recruiter * Self-authored letter wherein the applicant states he reached out to an Orlando, FL, recruiter in regards to whether a person with a bar to reenlistment could reenlist for a U.S. Army Reserve component and the answer he received was no, only active duty personnel could obtain a waiver * Excerpt from Chapter 30, section 3031 which provides details of educational assistance 6. Title 38 United States Code (USC), chapter 34 in effect at the time of the applicant’s service: a. Section 3461 states, in the case of any person serving on active duty on 31 December 1976, or a person whose eligibility is based on section 3452(a)(1)(B) of this chapter (contracted with the Armed Forces prior to 1 January 1977 and served on active duty for a period more than 180 days), the ending date for computing such person’s entitlement shall be the date of such person’s first discharge or release from active duty after 31 December 1976. b. Section 3462 states, no educational assistance shall be afforded an eligible veteran under this chapter beyond the date 10 years after the veteran’s last discharge or release from active duty, except in the case where a physical or mental disability which was not the result of the veteran’s own willful misconduct be granted an extension of the applicable delimiting period for such length of time the Secretary determines, from the evidence, that such veteran was so prevented from initiating or completing such program of education. When an extension of the applicable delimiting period is granted a veteran under the preceding sentence, the delimiting period with respect to such veteran will again begin running on the first day following such veteran’s recovery from such disability on which it is reasonably feasible, as determined in accordance with regulations which the Secretary shall prescribe. No educational assistance shall be afforded any eligible veteran under this chapter or chapter 36 of this title after 31 December 1989. 7. Title 38 USC section 30, subsection (a) (Opportunity for certain Veterans Educational Assistance Program (VEAP) applies to a member who was a participant in the educational benefits program provided by chapter 32 of this title (Post-Vietnam era Veteran’s Educational Assistance) on 9 October 1996, and is serving on active duty on such date, and during the one-year period beginning on 9 October 1996, makes an irrevocable election to receive benefits under this section in lieu of benefits under chapter 32 of this title, may elect to become entitled to basic educational assistance under this chapter. An individual who makes an election under subsection (a), the basic pay of the individual will be reduced until the total amount by which such pay is reduced $1,200.00 or if not so reduced before the individuals discharge or release from active duty as specified in subsection (a)(4) (honorable discharge), the Secretary shall collect from the individual an amount equal to the difference between $1,200.00 and the total amount of reductions under paragraph (1), which shall be paid into the Treasury of the United States. 8. Title 10 USC, section 1174, dated 14 September 1981 states, a regular enlisted member of an Armed Force who is discharged involuntarily or as the result of the denial of the reenlistment of the member and who has completed six or more, but less than 20, years of active service immediately before that discharge is entitled to separation pay. As a condition of receiving separation pay, a person otherwise eligible for separation pay shall be required to enter into a written agreement to serve in the Ready Reserve or a Reserve component for a period not less than three years following the persons discharge or release from active duty. 9. AR 635-5-1 (Separation Program Designators (SPD)) in effect at the time states SPD JBK is the appropriate code for Soldiers who will be separated from the service because of reaching their expiration term of service. 10. AR 601-280 (Army Reenlistment Program) in effect at the time states: a. A bar to reenlistment applies to persons whose reentry into or continued service with the Army is deemed not to be in the best interest of the military service. A bar to reenlistment is initiated without regard to an individual’s expiration term of service. When a certificate has been approved by the appropriate authority, the custodian of the individual’s personnel records will place a signed copy in the individual’s military personnel records jacket (MPRJ), where it will remain a permanent part of the file. The remark “Not recommended for further service” will be entered on the individual’s DA Form 2-1. b. An approved bar to reenlistment will be initially reviewed by the appropriate unit commander 6 months after date of approval or 30 days prior to the individual’s scheduled departure date from current unit or the individual’s date of separation, whichever occurs first. If the commander feels a bar to reenlistment should be removed, he will initiate a recommendation to this effect in writing. The approved recommendation voiding the bar to reenlistment will be placed in the individual’s MPRJ as a permanent part of the file. The bar to reenlistment certificate will be removed and destroyed, and the remark “not recommended for further service” on the DA Form 2-1 will be lined through, dated, and initiated by the custodian of the individual’s personnel records. c. The DD Form 214 of otherwise qualified persons, who are separated with a bar to reenlistment in effect, are coded RE-3 even though an honorable discharge may be issued 11. AR 15-185 (ABCMR), paragraph 2-9 states, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief for the applicant’s new request or to amend the decision of the ABCMR set forth in Docket Number AR20150005504, dated 21 January 2016. 1. The Board denied that portion of the applicant’s request regarding reconsideration of his previous request for separation pay. The record contains a memorandum dated 1 November 1982 indicating that, in accordance with AR 601-280, his commander directed permanent filing of his Bar to Reenlistment and his DA Form 2-1 enlisted qualification record contains the statement “Not recommended for further service.” Thus, the applicant was not eligible to enlist for the required three years in the IRR. In accordance with the contemporaneous rules in effect at the time of the applicant’s discharge, to be eligible for separation pay, the applicant would have had to complete three years in the IRR and he was ineligible to do so. Therefore, the applicant is not entitled to separation pay due to not completing three years in the IRR due to ineligibility to enlist in the IRR due to his bar to reenlistment. 2. The Board also denied that portion of the applicant’s request regarding education benefits. a. The applicant was eligible for education benefits under Title 38 United States Code (USC), chapter 34, which was in effect at the time of the applicant’s initial enlistment. Per Section 3462, the applicant would have had to use his education benefits within 10 years of his discharge. The applicant’s final discharge was effective on 18 February 1983 and the applicant would have had until 17 February 1993 to use his education benefits. The Army Secretary can provide an extension for a physical or mental disability (not the result of the veteran’s own willful misconduct). The record is void of and the applicant did not provide evidence that a physical or mental disability prevented him from using his education benefits. b. Title 38 USC section 30, subsection (a) (Opportunity for certain Veterans Educational Assistance Program (VEAP) applies to a member who was a participant in the educational benefits program provided by chapter 32 of this title (Post-Vietnam era Veteran’s Educational Assistance) on 9 October 1996. This section of the USC does not apply in the case of the applicant, who initially enlisted on 3 February 1971 and was finally discharged on 18 February 1983. 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 38 United States Code (USC) chapter 34 in effect at the time of the applicant’s service: a. Section 3461 states, in the case of any person serving on active duty on 31 December 1976, or a person whose eligibility is based on section 3452(a)(1)(B) of this chapter (contracted with the Armed Forces prior to 1 January 1977 and served on active duty for a period more than 180 days), the ending date for computing such person’s entitlement shall be the date of such person’s first discharge or release from active duty after 31 December 1976. b. Section 3462 states, no educational assistance shall be afforded an eligible veteran under this chapter beyond the date 10 years after the veteran’s last discharge or release from active duty, except in the case where a physical or mental disability which was not the result of the veteran’s own willful misconduct be granted an extension of the applicable delimiting period for such length of time the Secretary determines, rom the evidence, that such veteran was so prevented from initiating or completing such program of education. When an extension of the applicable delimiting period is granted a veteran under the preceding sentence, the delimiting period with respect to such veteran will again begin running on the first day following such veteran’s recovery from such disability on which it is reasonably feasible, as determined in accordance with regulations which the Secretary shall prescribe. No educational assistance shall be afforded any eligible veteran under this chapter or chapter 36 of this title after 31 December 1989. 2. Title 38 USC section 30, subsection (a) (Opportunity for certain Veterans Educational Assistance Program (VEAP) applies to members who was a participant in the educational benefits program provided by chapter 32 of this title (Post-Vietnam era Veteran’s Educational Assistance) on 9 October 1996, and is serving on active duty on such date, and during the one-year period beginning on 9 October 1996, makes an irrevocable election to receive benefits under this section in lieu of benefits under chapter 32 of this title, may elect to become entitled to basic educational assistance under this chapter. An individual who makes an election under subsection (a), the basic pay of the individual will be reduced until the total amount by which such pay is reduced $1,200.00 or if not so reduced before the individuals discharge or release from active duty as specified in subsection (a)(4) (honorable discharge), the Secretary shall collect from the individual an amount equal to the difference between $1,200.00 and the total amount of reductions under paragraph (1), which shall be paid into the Treasury of the United States. 3. Title 10 USC, section 1174, dated 14 September 1981 states, a regular enlisted member of an Armed Force who is discharged involuntarily or as the result of the denial of the reenlistment of the member and who has completed six or more, but less than 20, years of active service immediately before that discharge is entitled to separation pay. As a condition of receiving separation pay, a person otherwise eligible for separation pay shall be required to enter into a written agreement to serve in the Ready Reserve or a Reserve component for a period not less than three years following the persons discharge or release from active duty. 4. AR 635-5-1 (Separation Program Designators ) in effect at the time states SPD JBK is the appropriate code for Soldier’s who will be separated from the service because of reaching their expiration term of service. 5. AR 601-280 (Army Reenlistment Program) in effect at the time states: a. A bar to reenlistment applies to persons whose reentry into or continued service with the Army is deemed not to be in the best interest of the military service. A bar to reenlistment is initiated without regard to an individual’s expiration term of service. When a certificate has been approved by the appropriate authority, the custodian of the individual’s personnel records will place a signed copy in the individual’s MPRJ, where it will remain a permanent part of the file. The remark “Not recommended for further service” will be entered on the individual’s DA Form 2-1. b. An approved bar to reenlistment will be initially reviewed by the appropriate unit commander 6 months after date of approval or 30 days prior to the individual’s scheduled departure date from current unit or the individual’s date of separation, whichever occurs first. If the commander feels a bar to reenlistment should be removed, he will initiate a recommendation to this effect in writing. The approved recommendation voiding the bar to reenlistment will be placed in the individual’s MPRJ as a permanent part of the file. The bar to reenlistment certificate will be removed and destroyed, and the remark “not recommended for further service” on the DA Form 2-1 will be lined through, dated, and initiated by the custodian of the individual’s personnel records. c. The DD Form 214 of otherwise qualified persons, who are separated with a bar to reenlistment in effect, are coded RE-3 even though an honorable discharge may be issued 6. AR 15-185 (ABCMR), paragraph 2-9 states, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS//