IN THE CASE OF:	  

		BOARD DATE:	        07 OCTOBER 2008

		DOCKET NUMBER:  AR20080008993 


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 his military records be corrected to show that he completed 2 years of creditable active service.  

2.  The applicant essentially states that he enlisted for a period of 2 years and entered active duty on 5 November 1982, but that he was released from active duty on 2 November 1984, or 2 days shy of completing 2 years of active duty service.  He also states, in effect, that this is causing him problems with the Department of Veterans Affairs (DVA), and that he is ineligible for some of the DVA programs because of this.  He further states that he had no control over his release from active duty, and that he was not the one who established his date of release from active duty.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 that he enlisted in the Regular Army on 5 November 1982 for a period of 2 years, with an expiration of term of service (ETS) date of 4 November 1984.  He completed basic and advanced individual training and was awarded military occupational specialty 72E (Combat Telecommunications Center Operator).  He then served at Fort Stewart, Georgia until he was honorably released from active duty on 2 November 1984.  His 
DD Form 214 essentially shows that he only completed 1 year, 11 months, and 28 days of creditable service for pay, retirement, and veteran's benefits.  

3.  There is no evidence in the applicant's military records which shows that he consented to be released from active duty prior to his established ETS date of 
4 November 1984.

4.  The applicant essentially stated that he enlisted for a period of 2 years and entered active duty on 5 November 1982, but that he was released from active duty on 2 November 1984, or 2 days shy of completing 2 years of active duty service.  He also stated, in effect, that this is causing him problems with the DVA, and that he is ineligible for some of the DVA programs because of this.  He further stated that he had no control over his release from active duty, and that he was not the one who established his date of release from active duty.  

5.  Army Regulation 635-200 (Enlisted Personnel), in effect at the time, set forth the criteria for separating enlisted Soldiers from active duty.  Paragraph 4-1 of this regulation stated that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.

6.  This same regulation, at paragraph 4-2, recognized the fact that some Soldiers' terms of service may expire on Saturday, Sunday, or a holiday.  This paragraph provided that such Soldiers may consent to be separated on the last working day before their normal date of discharge or release from active duty.  The date of release from active duty will be the date recorded on the DD Form 214. 

7.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the statement “Service member has/has not completed first full term of Service” will be entered in the remarks section of the DD Form 214.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that he completed 2 years of creditable active service.  

2.  While it is a common practice for Soldiers to be released from active duty on the last working day prior to an ETS that falls on a weekend or holiday, the applicable regulations require that Soldiers who elect to separate early be advised of the consequences of early separation as it may affect future benefits, and they must consent to such separations.  The applicant's scheduled ETS date fell on Sunday, 4 November 1984, but he was released on Friday, 2 November 1984, the last duty day prior to his ETS.

3.  Therefore, it appears that it is inherently unjust that the applicant be penalized for something that occurred through no fault of his own.  It is also noted that it would also be inappropriate to grant him service credit for service he did not perform, as it would afford him a benefit not afforded to others in similar circumstances.  However, because it affects his veteran’s benefits, his DD Form 214 should be corrected to reflect in the Remarks section that the “Service member completed his first full term of Service”. 

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 showing in the remarks section of his DD Form 214 the statement “Service member 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 granting the applicant 2 days of additional active duty credit.  

3.  The Board wants to thank the applicant for his service to our Nation.




      ___        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)                                         AR20080008993



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ABCMR Record of Proceedings (cont)                                         AR20080008993



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