IN THE CASE OF:
BOARD DATE: 12 February 2009
DOCKET NUMBER: AR20080017730
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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he completed his first full term of service.
2. The applicant states, in effect, that he reenlisted in October 2002 completing his first full term. He concludes, in effect, that he is being denied Montgomery GI Bill (MGIB) benefits because his DD Form 214 incorrectly states that he did not complete his first full term of service.
3. The applicant provides a DD Form 214 and two enlistment/reenlistment packets 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 13 June 2000 for a period of 8 years. He was discharged from the DEP and enlisted in the Regular Army on 5 July 2000 for 3 years. He was subsequently discharged on 28 October 2002 for the purpose of immediate reenlistment. He reenlisted on 29 October 2002 for 3 years. On 7 July 2003, he was discharged under the provisions of Army Regulation 635-200, chapter 14 by reason of misconduct. He received a general under honorable conditions discharge.
3. Item 18 (Remarks) of the applicant's DD Form 214 contains the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE."
4. 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. Paragraph 2-4h(18)(c) states that, for enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates) will be entered. However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except Honorable, then Continuous Honorable Active Service from (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment) will be entered. Then, the specific periods of reenlistments as prescribed above will be entered.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his DD Form 214 should be corrected to show he completed his first full term of service has been carefully reviewed and found to have merit.
2. The applicant initially enlisted in the Regular Army on 5 July 2000. By virtue of his reenlistment on 29 October 2002, he effectively completed his first full term of service. His DD Form 214 erroneously shows he did not complete his first full term of service. Therefore, his record should be corrected accordingly.
3. The applicant had more than one enlistment period during the time covered by his DD Form 214. Therefore, his DD Form 214 should be corrected to reflect this reenlistment.
BOARD VOTE:
____X___ ___X____ __X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. deleting from item 18 of his DD Form 214 the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE";
b. adding to item 18 of his DD Form 214 the entry "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE";
c. adding to item 18 of his DD Form 214 the entry "IMMEDIATE REENLISTMENT THIS PERIOD 20021029 20030707"; and
d. adding to item 18 of his DD Form 214 the entry "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20000705 20021028."
___________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) AR20080017730
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ABCMR Record of Proceedings (cont) AR20080017730
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