IN THE CASE OF:
BOARD DATE: 3 July 2008
DOCKET NUMBER: AR20080003891
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 the DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 20 June 1985 through 10 July 2000 be removed from his official military personnel file (OMPF).
2. The applicant states, in effect, that he reenlisted on 10 July 2000 and did not have a break in active duty service. He further states that he discovered the DD Form 214 had not been revoked when he was reviewing his record in preparation for retirement.
3. The applicant provides copies of DD Form 2648 (Preseparation Counseling Checklist), discharge orders, DD Form 214, DA Form 3340-E (Request for Reenlistment or Extension in the Regular Army), DA Form 3286-E (Statements for Enlistment), and DD Form 4 Series (Enlistment/Reenlistment Document, Armed Forces of the United States) 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 applicants 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 applicants 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 initially enlisted in the Regular Army on 20 June 1985 and he has served continuously on active duty since that date.
3. A DA Form 2648 shows the applicant received counseling in preparation for discharge from the Army on 24 April 2000.
4. Headquarters, 18th Personnel Services Battalion, Fort Bragg, North Carolina, Orders 122-0300, dated 1 May 2000, reassigned the applicant to the United States Army Transition Center located at Fort Bragg, North Carolina with a reporting date of 26 June 2000. This order further shows the applicant's discharge date, unless changed or rescinded, was to be 10 July 2000.
5. DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 20 June 1985 through 10 July 2000 was prepared during the applicant's preseparation processing in anticipation of his scheduled discharge on 10 July 2000.
6. DA Form 3340-E, dated 10 July 2000, shows the applicant requested reenlistment in the active component. This form further shows the applicant's commander approved his request on the same date.
7. DA Form 3286-E, dated 10 July 2000, shows the applicant voluntarily acknowledged and accepted the legal terms and obligations associated with reenlistment in the Regular Army in accordance with the needs of the Army.
8. DD Form 4 Series, dated 10 July 2000, shows the applicant reenlisted in the Regular Army for a period of 5 years commencing 10 July 2000.
9. Paragraph 1-1 (Purpose) of Army Regulation 635-5 (Separation Documents), in effect, shows that DD Form 214 is prepared for Soldiers upon retirement, discharge, release from active duty, or released from control of the Active Army.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that the DD Form 214 for the period 20 June
1985 through 10 July 2000 should be removed from his official military personnel file was carefully considered and found to be with merit.
2. Evidence shows the applicant was issued discharge orders and a DD Form 214 was prepared in preparation for his pending discharge date of 10 July 2000.
3. Evidence also shows the applicant voluntarily reenlisted prior to having a break in service on 10 July 2000.
4. The applicant's reenlistment nullified his pending discharge and should have been the catalyst for revocation of his discharge orders and voiding the DD Form 214.
5. Based on the foregoing, the discharge orders and the DD Form 214 for the period 20 June 1985 through 10 July 2000 are erroneous. Therefore, it would be appropriate, in this case, to correct the applicant's record by revoking his discharge orders, voiding the DD Form 214, and removing the aforementioned documents from his records.
BOARD VOTE:
___X____ __X_____ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by revoking his discharge orders, voiding the DD Form 214, and removing the aforementioned documents from his records.
_ ___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.
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