IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100013060 


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 correction of his military records to show that he had a break in service of more than 24 hours.

2.  The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not show a break in service between the end of his first enlistment and his subsequent reenlistment on 19 August 2004.  He contends that he was out of the service for more than 24 hours and should have a DD Form 214 that shows his first period of honorable service.  Because of this error, he cannot obtain medical treatment for his post-traumatic stress disorder.

3.  The applicant provides copies of his DD Form 214; DD Form 4 (Enlistment Document), dated 19 August 2004; DD Form 3340 (Request for Reenlistment or Extension in the Regular Army), dated 19 August 2004; and DA Form 3286 (Statements for Enlistment), dated 19 August 2004.

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.  On 7 February 2002, the applicant enlisted in the Regular Army for 3 years, establishing his expiration of term of service (ETS) as 6 February 2005.  He completed his initial training and was awarded military occupational specialty 92Y (Unit Supply Specialist).

3.  On 19 August 2004, the applicant elected to reenlist for 3 years prior to reaching his ETS.  His new ETS was established as 18 August 2007.

4.  On 5 February 2007, the applicant was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions Army Regulation 635-200 (Personnel Separations), chapter 10.  He completed a total of 4 years, 11 months, and 29 days.

5.  Item 18 (Remarks) of the applicant's DD Form 214 states he had continuous honorable active service from 7 February 2002 to 18 August 2004.

6.  Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214.

	a.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

	b.  A DD Form 214 will not be prepared for Soldiers discharged for immediate reenlistment in the Regular Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he had a break in service of more than 24 hours when he reenlisted on 19 August 2004 and that his DD Form 214 should show his first period of honorable service.

2.  The evidence of record clearly shows the applicant immediately reenlisted in the Regular Army without a break in service.

3.  The governing regulation prohibits issuance of a DD Form 214 for Soldiers who immediately reenlist in the Regular Army.

4.  In view of the above, the applicant's request should be denied.
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 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)                                         AR20100013060



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ABCMR Record of Proceedings (cont)                                         AR20100013060



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