IN THE CASE OF:	

		BOARD DATE:	  11 September 2008

		DOCKET NUMBER:  AR20080010950 


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 28 March 1983 discharge for reenlistment be considered complete and unconditional.

2.  The applicant states, in effect, that his honorable service performed through 28 March 1983, should entitle him to Department of Veterans Affairs (VA) benefits.  

3.  The applicant provides a self authored statement in support of his 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 personnel records show he initially enlisted in the Regular Army (RA) and entered active duty on 2 April 1980, for a 3 year period.  He continuously served on active duty for 2 years, 11 months, and 27 days until 28 March 2003, at which time he was honorably discharged for the purpose of immediate reenlistment, and on 29 March 1983, he reenlisted and remained on active duty.

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he was promoted to the rank of specialist four (SP4) on 1 February 1981, and that this was the highest rank he attained while serving on active duty.  It also shows that he was reduced to the rank of private/E-2 (PV2) on 18 January 1986.  Item 9 (Awards, Decorations, and Campaigns) shows he earned the following awards during his active duty tenure:  Army Good Conduct Medal (AGCM); 
Army Achievement Medal (AAM); Army Service Ribbon (ASR); Overseas Service Ribbon (OSR); Expert Marksmanship Qualification Badge with Rifle Bar; and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  Item 21 (Time Lost) shows he accrued a total of 1,265 days of time lost during two separate periods absence without leave (AWOL).  The first period was from 
12 through 13 April 1984, and the second was from 19 May 1986 through
2 November 1989. 

4.  On 10 January 1990, the applicant was discharged, in the rank of private/E-1 (PV1), under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by court-martial, and received an UOTHC discharge.  The separation document (DD Form 214) he was issued shows he completed a total of 6 years, 3 months, and 24 days of creditable active military service and that he accrued 1,265 days of time lost due to AWOL.  It also shows he earned the following awards:  AAM; AGCM; ASR; OSR; Expert Marksmanship Qualification Badge with Rifle Bar; and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  

5.  There is no evidence indicating that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its
15-year statute of limitations.  However, on 22 May 2008, this Board acted on the applicant's request to upgrade his UOTHC discharge.  The Board determined the applicant's discharge was proper and equitable, and it denied his request for an upgrade.  A complete and unconditional discharge based on his first enlistment was not requested by the applicant, nor was it addressed by the Board.  

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214. 
7.  Chapter 2 of the separation documents regulation contains item-by-item instructions for preparing the DD Form 214.  The instructions for Item 18 state, in pertinent part, that the entry "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE" is mandatory.  It further 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.  The instructions further state that for enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates).  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable," enter "Continuous Honorable Active Service From" (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistments as prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be granted a complete and unconditional discharge for his initial period of active duty service has been carefully considered and found to have partial merit.  Unconditional service determinations under Public Law Number 95-126 and entitlement to veteran's benefits based on these determinations are within the purview of the VA, and will be made by that agency.  However, entries are required on the DD Form 214 to assist the VA and State agencies in making these benefit entitlement determinations.

2.  By regulation, an entry in Item 18 stipulating if a member has or has not completed the first full term of service is mandatory.  Although 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, 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.  The governing regulation also stipulates that the immediate reenlistment entries in Item 18 for Soldiers who have previously reenlisted without being issued a 
DD Form 214 and are separated with any characterization of service except "Honorable" will contain the entry "Continuous Honorable Active Service From" (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment), and then the specific periods of reenlistments will be entered.  


3.  Based on the regulatory guidance, given the applicant completed all but three days of his first three-year enlistment and ended his first enlistment with an immediate reenlistment, the entries "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" should be added to Item 18 of his DD Form 214, and the immediate reenlistment entry in Item 18 should be modified to read 
"Continuous Honorable Active Service From 800402 Until 830328."  

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 amending Item 18 of his DD Form 214 by adding the entry “SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" and by modifying the immediate reenlistment entry to read "CONTINUOUS HONORABLE ACTIVE SERVICE FROM FROM 800402 UNTIL 830328 - IMMEDIATE REENLISTMENTS THIS PERIOD "800402-830328"; and by providing him a correction to his separation document that includes these changes.  

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 a complete and unconditional discharge determination or any determination relating to entitlement to veterans benefits.



      _________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)                                         AR20080010950



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ABCMR Record of Proceedings (cont)                                         AR20080010950


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