IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20070017053 


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, that he be issued a DD Form 214, Certificate of Discharge or Release from Active Duty.

2.  The applicant states, in effect, that he did not go through out-processing at the conclusion of his service and he did not receive a DD Form 214.  He now needs a copy of his DD Form 214 to apply for State and Government jobs.

3.  In support of his request, the applicant provides no documentary evidence of his service besides his DD Form 149, Application for Correction of Military Record.

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 evidence shows that the applicant enlisted in the US Army Reserve for a period of six years, in pay grade E-1, on 18 March 1978.  On 19 September 1978, he enlisted in the Regular Army.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty, 19E, Armor Crewman.

3.  The applicant was assigned to Fort Benning, Georgia, as his first duty station.  He received reassignment order to serve in Germany.  At the time he received his reassignment orders, he had insufficient service remaining to complete the overseas tour with dependents.  On 19 June 1980, the applicant extended the period of his service for ten months under the provisions of Army Regulation
601-280, Chapter 3, Table 3-1, Rule 5, to complete the overseas tour, with dependents. The applicant arrived in Germany on 25 July 1980.

4.  The applicant was honorably discharged for the purpose of immediate reenlistment on 4 April 1983.  He reenlisted for a period of six years, for a CONUS (Continental United States) Station of Choice Reenlistment Option (Fort Bliss, Texas), in the rank and pay grade, Specialist Four, E-4, on 5 April 1983.  The applicant's new expiration of his term of service (ETS) date was reestablished as 4 April 1989.

5.  The applicant was reassigned to Fort Bliss in accordance with Orders 329-22, published by US Army Personnel Center, Nuernberg, on 17 December 1987.  The applicant arrived at Fort Bliss and served there from 25 August 1983 until 28 February 1985.

6.  Orders 187-29, published by Headquarters, US Army Defense Artillery Center and Fort Bliss, on 25 September 1984, promoted the applicant to the rank and pay grade, Sergeant, E-5, with an effective date of 1 October 1984, with a date of rank of 2 September 1984.  These orders are the only orders that file in the applicant's service personnel records that were published for the applicant at Fort Bliss and the last orders in the applicant's service personnel records which were found to have been prepared for the applicant for any purpose at any location.

7.  The applicant's DA Form 2-1, Personnel Qualification Record, Part II, Item 35 (Record of Assignments), shows that the applicant was again reassigned to Germany and he arrived there on 2 April 1985.  This same item shows that the applicant was returned to CONUS on 22 March 1988.  On the date of his return from Germany, the applicant still had over a year left to his established ETS date.

8.  There is no evidence the applicant was out-processed from the Army or that he was ever provided a DD Form 214 at the expiration of his service.  Contractually, the applicant would have arrived at his ETS date on 4 April 1989.
9.  On 8 August 2008, a staff member of the Board inquired of the US Army Deserter Information Point if there was any record of the applicant having been reported as being in an absent without leave status and/or having been declared a deserter.  That agency had no report or information that the applicant was ever reported as being absent without leave or that he was ever declared to be a deserter.

10.  On 8 August 2008, a staff member requested a copy of the applicant's microfiche records from the National Personnel Records Center, St. Louis, Missouri.  On 5 September 2008, the staff member was notified that a copy of the applicant's microfiche record was not available.

11.  Army Regulation 635-5 prescribes policies and procedures regarding separation documents.  This regulation specifies that 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 a Soldier's release from active duty, retirement, or discharge.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service.  A DD Form 214 will be prepared for each Soldier who is being released from active duty, retired, or discharged; however, a DD Form 214 was not issued to active duty personnel who were discharged and reenlisted subsequent to 1 October 1979 (discharge certificates were however issued to all personnel).

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant enlisted in the US Army Reserve for a period of six years, in pay grade E-1, on 18 March 1978.  He enlisted in the Regular Army on 19 September 1978, extended his period of service for 10 months on 19 June 1980, and was honorably discharged for the purpose of reenlistment on 4 April 1983.  If the applicant's service had not been honorable, he would not have been allowed to reenlist on 5 April 1983; therefore, the applicant is entitled to issuance of a certificate of service to document his active duty service from 19 September 1978 through 4 April 1983.

2.  There is no evidence, and the applicant provided none to show, that he was provided a DD Form 214 when he was discharged for the purpose of immediate reenlistment on 4 April 1983.  On the date of his reenlistment, there was no regulatory requirement to provide a Soldier who immediately reenlisted with a DD Form 214 to document his service.  There was however a requirement to provide a Soldier a discharge certificate to document his service.


3.  The evidence shows that the applicant reenlisted for six years on 5 April 1983. His ETS was established as 4 April 1989.

4.  The applicant's service record shows that he completed an overseas tour in Germany, was reassigned to Fort Bliss, and was again reassigned to Germany for a second overseas tour on 2 April 1985.  The evidence shows that the applicant departed Germany en route to CONUS on 22 March 1988; however, nothing further is shown in his service personnel records.  At the time of the applicant's return from Germany, he still had over a year remaining until his normally scheduled ETS.

5.  There is no evidence in the applicant's service personnel records that orders were published reassigning him to a separation transfer point for the purpose of discharging him from the Army at his ETS.

6.  Because the facts and circumstances pertaining to his service from 22 March 1988 to 4 April 1989 and the facts and circumstances surrounding the applicant's departure from the Army are not known, he is not entitled to have a DD Form 214 prepared to document his service for the period 19 September 1978 to 4 April 1989.

7.  The evidence of record shows the applicant was not issued a DD Form 214 when he reenlisted on 5 April 1983 in accordance with the applicable regulation.  The evidence indicates, by the fact that he was allowed to reenlist for six years, that he served honorably from 19 September 1978 until the date of his discharge, 4 April 1983.

8.  In view of the foregoing, there is no basis for granting the applicant's request of providing him with a DD Form 214 to document his service from 5 April 1983 to 4 April 1989.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 issuing the applicant a certificate of service for the period 19 September 1978 through 4 April 1983 to show that he served honorably and was discharged for the purpose of immediate reenlistment in the rank and pay grade of Specialist Four, E-4, on that date.

2.  The Board further determined that 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 request to issue him a DD Form 214 for his active duty service for the period from 19 September 1978 through 4 April 1989 which included two enlistment periods:  from 19 September 1978 through 4 April 1983 and from 5 April 1983 through 4 April 1989.



      __________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)                                         AR20070017053



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20070017053



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1