IN THE CASE OF:	  

		BOARD DATE:	  	  15 January 2009

		DOCKET NUMBER:  AR20080017105 


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, a DD Form 214 (Certificate of Release or Discharge from Active Duty) for his period of honorable active service. 

2.  The applicant states, in effect, he has an Honorable Discharge Certificate
(DD Form 256A) for the period of honorable active service, but he does not have a DD Form 214.

3.  The applicant provides a copy of his DD Form 256A, dated 28 February 1985, 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 enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 7 October 1981 in the Delayed Entry Program (DEP).  He then enlisted in the Regular Army (RA) and entered active duty for a period of 3 years on 31 August 1982.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 16R (Air Defense Artillery Short Range Gunnery Crewman).  The applicant served overseas in U.S. Army Europe in Germany from 19 January 1983 through 18 January 1986.

3.  The applicant’s military personnel records contain a DD Form 4 (Enlistment Contract - Armed Forces of the United States) that shows he reenlisted in the RA for a period of 5 years on 1 March 1985.

4.  The applicant’s records are absent a DD Form 214 for the period of service from 31 August 1982 through 28 February 1985.

5.  The applicant's military personnel records contain a DD Form 214 that shows he entered active duty this period on 31 August 1982 and was discharged on
22 May 1989 under other than honorable conditions, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), based on civilian conviction.  Item 12 (Record of Service) shows that at the time he had completed 6 years and 6 days net active service this period; 10 months and 24 days of total prior inactive service; and 3 years of foreign service.  Item 18 (Remarks), in pertinent part, shows the applicant had service in the DEP from 7 October 1981 through 30 August 1982.  This item also contains the entry “Item 12a.  Immediate reenlistment this period.” and shows he served from 31 August 1982 through 28 February 1985 and from
1 March 1985 through 22 May 1989.

6.  In support of his application, the applicant provides a copy of his DD Form 256A that shows he was honorably discharged from the U.S. Army on
28 February 1985.

7.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  This document shows, in pertinent part, that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

8.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  Effective 1 October 1979, Army Regulation 635-5 (Personnel Separations - Separation Documents) ended the need to prepare the DD Form 214 for enlisted members discharged for immediate reenlistment.

10.  Army Regulation 635-5, in effect at the time of the applicant's separation from active duty, prescribed 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 established standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record (PQR), Officer Record Brief (ORB), enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket (MPRJ), or any other document authorized for filing in the Official Military Personnel File (OMPF).

11.  Table 2-1 (DD Form 214 Preparation Instructions) of the Separation Documents regulation, in effect at the time of the applicant's discharge, contains item-by-item instructions for completing the DD Form 214.  Item 12 (Record of Service) states to use extreme care in completing this block since post-service benefits, final pay, retirement credit, etc. are based upon the information contained herein.

     a.  Block a (Date Entered AD This Period) states to enter the beginning date of the enlistment period or tour of active duty for which a DD Form 214 was not issued under paragraph 1-4b(5).

     b.  Block b (Separation Date This Period) states to enter the separation date this period.

     c.  Block c (Net Active Service This Period) states to enter the amount of service this period (subtract 12a from 12b).  Lost time under Title 10, United States Code, section 972 and non-creditable time after expiration term of service, if any, will be deducted.

     d.  Item 18 (Remarks) states to use this block for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries that are too long for this blocks.  Enter a list of reenlistment periods for which a DD Form 214 was not issued, if applicable
(e.g., "Immediate reenlistments this period:  781218-791001; 791002-821001").

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he should be issued a DD Form 214 because he served honorably on active duty from 31 August 1982 through
28 February 1985 and was issued an Honorable Discharge Certificate, but he was not issued a DD Form 214 for this period of honorable active service.

2.  The evidence of record shows the applicant initially enlisted in the RA on
31 August 1982, was honorably discharged on 28 February 1985 for the purpose of his immediate reenlistment in the RA, and he was issued a DD Form 256A for this period of honorable active service.  The evidence of record also shows that the requirement to prepare the DD Form 214 for enlisted members discharged for immediate reenlistment was terminated by the governing Army Separations Documents regulation, effective 1October 1979.  Thus, the evidence of record shows the applicant was properly discharged for his immediate reenlistment in the RA and he is not entitled to a separate DD Form 214 for this period of active service.

3.  The evidence of record shows the applicant reenlisted in the RA on 1 March 1985, was discharged under other than honorable conditions on 22 May 1989, and he was issued a DD Form 214 covering the period from 31 August 1982 through 22 May 1989.  The evidence of record also shows the applicant’s initial period of enlisted active duty service (i.e., from 31 August 1982 through
28 February 1985) is properly and accurately recorded in Item 18 of this
DD Form 214.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records in this instance.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  _____X___  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20080017105



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ABCMR Record of Proceedings (cont)                                         AR20080017105



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