IN THE CASE OF: BOARD DATE: 29 October 2009 DOCKET NUMBER: AR20090008454 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, a correction of his records by issuance of a separate DD Form 214 (Certificate of Release or Discharge from Active Duty) for his first period of service which was combined with his subsequent service. He also requests correction of his net active service on his DD Form 214. 2. The applicant states, in effect, that he served a period of service for which he was given an honorable discharge as indicated by an attached discharge certificate. He states that he reenlisted for four years and he was subsequently convicted by a civil court and administratively discharged. He states that he feels he should be given credit for this initial period of honorable service. He states that he believes he should have been issued a separate DD Form 214 for the first period of service that he served honorably. 3. The applicant provides a copy of his DD Form 214 and a DD Form 256A (Honorable Discharge Certificate) in support of this application. CONSIDERATION OF EVIDENCE: 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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's military records show he enlisted in the Regular Army (RA) for three years on 15 February 1977. He was awarded military occupational specialty (MOS) 11C (indirect fire infantryman). 3. The applicant's was honorably discharged on 9 December 1979 for the purpose of immediate reenlistment. He reenlisted in the RA on 10 December 1979 for four years. He was promoted to the rank/grade of sergeant (SGT)/E-5 on 6 October 1981, which is the highest rank he held during his tenure of service. 4. Records further show he was absent without leave (AWOL) from 10 September 1982 to 25 November 1982 for a period of 2 months and 16 days and in civilian confinement from 26 November 1982 to 19 July 1983, for a total of 10 months and 10 days of lost time. 5. On 19 July 1983, the applicant was discharged from active duty by reason of civilian conviction under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 14, Section II, with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 5 years, 6 months, and 25 days of net active service with 10 months and 10 days of lost time. 6. Army Regulation 635-5 is a synopsis of the Soldier's most recent period of continuous active duty service. It provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge. It provides that, effective 1 October 1979, DD Forms 214 are not issued to enlisted service members who are discharged for immediate reenlistment. 7. Army Regulation 635-5, in effect at the time, stated that all service entered in item 12c (Net Active Service This Period) will be less time lost under Title 10, U.S. Code, section 972 and time lost after expiration of term of service. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he should be issued a separate DD Form 214 for his first period of honorable service in 1979. He also contends that his net active serve is incorrectly calculated on his DD Form 214. 2. The applicant was honorably discharged on 9 December 1979 as evidenced by the DD Form 256A he was issued at the time of his discharge that covered his period of service from 15 February 1977 through 9 December 1979. He then reenlisted on 10 December 1979 for another term of service. However, effective 1 October 1979, the applicable Army regulation directed that DD Forms 214 were no longer authorized for issue for immediate reenlistments. 3. The entry in Item 12c of the applicant's DD Form 214 was determined by subtracting from his net active service his total lost time (e.g., AWOL and confinement). In his case his net active service was 6 years, 5 months, and 5 days. However, as a result of subtracting his total lost time of 10 months and 10 days, his adjusted net active service equals 5 years, 5 months, and 25 days, which is correctly entered on his DD Form 214. 4. In view of the foregoing, there is no basis for granting the applicant's requested relief. BOARD VOTE: ________ ________ ________ 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 that 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. ABCMR Record of Proceedings (cont) AR20090008454 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090008454 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1