IN THE CASE OF:	  

		BOARD DATE:	        03 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080004547 


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 Certificate of Release or Discharge from Active Duty (DD Form 214) to show that he was discharged in the rank and pay grade of sergeant (E-5); that at the time of his discharge he was transferred to “FT Knox, WA and FT Stewart, GA”; that he was discharged in the year 2000; that he had two awards of the Army Achievement Medal; and that he honorably completed his first period of enlistment.

2.  The applicant states that his original period of enlistment was for 4 years, not 6 years.  He states that his Personnel Qualification Record (DA Form 2-1) was reconstructed on 30 January 2002, which was 9 months after his discharge and it contains none of his military history other than his enlistment and discharge.  He states that, essentially, information such as reenlistment papers, as well as commendation and promotion records are missing from his official military file.

3.  The applicant provides in support of his application, a copy of his DD Form 214; a copy of his United States Army Reserve (USAR) Enlistment Contract; a copy of his Service School Academic Evaluation Report; a copy of his Noncommissioned Officer Evaluation Report; a copy of his Servicemembers’ Group Life Insurance Election and Certificate; a copy of his temporary DA Form 2-1; a copy of a memorandum, dated 5 February 2002, requesting that he be discharged in lieu of trial by court-martial; a copy of a memorandum approving his request for discharge, dated 8 February 2002; and a copy of a memorandum dated 30 April 2001, in which he admits to being AWOL.


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 26 February 1996, the applicant enlisted in the USAR in Jacksonville, Florida, for 8 years in the pay grade of E-1 in the Delayed Entry/Enlistment Program.  He enlisted in the Regular Army (RA) for 4 years on 4 April 1996 and he successfully completed his training as a track vehicle repairer.

3.  The available records do not show whether the applicant extended his 4 April 1996 period of enlistment or reenlisted in the RA for an additional period of service nor has the applicant submitted any documentation that shows whether he extended his period of enlistment or reenlisted in the RA.  However, the available records do show that he was serving in the pay grade of E-5 when he went absent without leave (AWOL) on 17 October 2000.  He was dropped from the rolls as a deserter on 15 November 2000.

4.  The applicant remained absent in desertion until he was surrendered to authorities and returned to military control on 25 April 2001.

5.  On 30 April 2001, the applicant was notified that charges were pending against him for being AWOL.  He acknowledged receipt of the notification on 30 April 2001 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

6.  The appropriate authority approved the request for discharge on 8 February 2002 and Order 43-9 was published on 12 February 2002, reducing the applicant to the lowest enlisted grade (E-1) effective 8 February 2002.


7.  Accordingly, on 19 February 2002, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 5 years, 4 months and 12 days of net active service.

8.  The DD Form 214 that the applicant was furnished at the time of his discharge shows that the was discharged in the rank and pay grade of private (E-1); that he was not transferred to any command at the time of his discharge; that his separation date was 19 February 2002; that he was awarded the Army Service Ribbon; and that he did not complete his first full term of service.

9.  The available records do not show that the applicant was ever awarded the Army Achievement Medal while he was in the Army.

10.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of REFRAD or discharge.

11.  Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service.  Paragraph 2-4h(18)(b) states that the entry “SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE” is a mandatory entry.  This information assists the State in determining eligibility for unemployment compensation entitlement.  Paragraph 2-4h(18)(b)1 states that, routinely, a Soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service.  However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was reduced to the rank and pay grade of E-1 prior to his discharge and his DD Form 214 properly reflects this information.

2.  He was discharged from the Army under other than honorable conditions and as such, he was not transferred to any other command.  His DD Form 214 also properly reflects that he was not transferred to a command at the time of his discharge.  Therefore item number 9 on his DD Form 214 is correct as currently reflected.


3.  There is no evidence in the available records, nor has the applicant submitted any evidence, that shows that he was ever awarded an Army Achievement 
Medal while he was in the Army.  Therefore, there is no basis for granting this portion of the applicant’s request.

4.  Although the applicant contends that his enlistment was for a period of 4 years, he enlisted in the RA on 4 April 1996 and he was not discharged until 19 February 2002.  There is no evidence of record that shows that he was issued a separate DD Form 214; therefore, the DD Form 214 appropriately reflects his service from the time of his enlistment in the RA until the time of his discharge.  There is no basis for changing the separation date that is currently reflected on his DD Form 214.

5.  However, the applicant’s records show that he enlisted in the RA on 4 April 1996, which indicates that his first full term of service would have been completed on 3 April 2000.  In accordance with regulatory guidance, he did meet the criteria to have his first term of service considered as being complete and this information was not properly annotated on his DD Form 214.  Therefore, it would now be in the interest of justice to correct his DD Form 214 to reflect the appropriate information.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX __  __XXX__  __XXX__   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 deleting the entry “MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE” from item 18 on his DD Form 214 and adding “SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE.”


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 correcting his records to show that he was discharged in the rank and pay grade of sergeant (E-5); that he was transferred to Fort Knox or Fort Stewart at the time of his discharge; that he 
was discharged in the year 2000; and that he was awarded two Army Achievement Medals.



      ___        XXX                ___
                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)                                         AR20080004547



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ABCMR Record of Proceedings (cont)                                         AR20080004547



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