IN THE CASE OF:	  

		BOARD DATE:	  17 March 2009

		DOCKET NUMBER:  AR20080016346 


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, reconsideration of his earlier request that his, 2 November 1980, discharge be considered a complete and unconditional discharge.

2.  The applicant states, in effect, that he is requesting the Board reconsider his request for a complete and unconditional discharge.  He asks that the "whole man" concept be used in reviewing his case and that his 3 years, 11 months, and 10 days of honorable service be considered and that the focus not be entirely on the military offenses which ultimately led to his final discharge.  He further states that he knows complete and unconditional discharges have been granted by the Board and cannot understand why his case was denied.

3.  The applicant provides a self-authored statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080006958 on 4 September 2008.

2.  The applicant now provides a new argument in support of his previous request that requires reconsideration.  

3.  The applicant's military personnel records show that after serving in the United States Army Reserve (USAR), he initially enlisted in the Regular Army (RA) and entered active duty, on 23 November 1976, for a period of 4 years.  

4.  The available records show the applicant continuously served on active duty for 3 years, 11 months, and 10 days until 2 November 1980, at which time he was honorably discharged for the purpose of immediate reenlistment.  On 
3 November 1980, he reenlisted for 3 years and remained on active duty.

5.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he was promoted to the rank of specialist four (SP4) on 1 May 1978, 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-1 (PV1) on 7 June 1983.  Item 9 (Awards, Decorations, and Campaigns) shows he earned the following awards during his active duty tenure:  Army Service Ribbon (ASR), Overseas Service Ribbon (OSR), Sharpshooter Marksmanship Qualification Badge with Machine Gun and Pistol Bars, and Expert Marksmanship Qualification Badge with Hand Grenade and Rifle Bars.

6.  On 20 June 1983, the applicant was discharged under the provisions of chapter 14-12b, Army Regulation 635-200, by reason of misconduct.  The separation document (DD Form 214) he was issued at the time shows he held the rank of PV1 and had completed a total of 6 years, 6 months, and 28 days of creditable active military service.  

7.  There is no evidence indicating 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 2 April 1986, the ABCMR acted on the applicant's request to upgrade his under other than honorable conditions (UOTHC) discharge.  The Board determined the applicant's discharge was proper and equitable, and denied his request for an upgrade. 

8.  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.  Chapter 2 contains item-by-item instructions for preparing the DD Form 214.  The current version of the regulation instructing that Item 18 state, in pertinent part, whether a Soldier has or has not completed his first full term of service is mandatory.  It further indicates 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.  For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, the entry "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates) will be added to Item 18.  

9.  The instructions for Item 18 of the DD Form 214 contained in the separation documents regulation also states that for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are separated with any characterization of service except "Honorable" 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) will be added to Item 18 and then the specific periods of reenlistments will be added.

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 partial relief is warranted.  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 and as a result it would be appropriate to make these administrative corrections. 

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 and if a Soldier reenlists before the completion of his initial contracted period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.  The governing regulation also provides for immediate reenlistment entries in Item 18 of the DD Form 214 for Soldiers who have previously reenlisted without being issued a DD Form 214, and who are separated with any characterization of service except "Honorable."   This entry will be the statement "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, the applicant's initial 4 year enlistment in the RA on 23 November 1976 would be redefined based on his 3 November 1980 reenlistment and he should have been credited with completing his first full term of service.  Therefore, the entry "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" should be added to Item 18 of the applicant's DD Form 

214, and the immediate reenlistment entry already contained in Item 18 should be modified to read "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 761123 UNTIL 801102-IMMEDIATE REENLISTMENTS THIS PERIOD 
"801103-830620." 

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 amendment of the ABCMR’s decision in Docket Number AR20080006958, dated 4 September 2008, by granting 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 as follows:

	a.  add the entry “SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE";  

	b.  modify the existing immediate reenlistment entry to show "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 761123 UNTIL 801102-IMMEDIATE REENLISTMENTS THIS PERIOD "801103-830620"; and 

	c.  provide 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 related to entitlement to veterans benefits which remains within the purview of the Department of Veterans Affairs.  




      _______ 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)                                         AR20080016346



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ABCMR Record of Proceedings (cont)                                         AR20080016346


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