IN THE CASE OF:	  

		BOARD DATE:	  19 March 2009

		DOCKET NUMBER:  AR20080017769 


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 Item 5 (Date of Birth) and Item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 19 July 1996.

2.  The applicant states, in effect, that Item 5 of his DD Form 214 should be corrected to show his date of birth (DOB) as 26 September 1973 vice 12 May 1974.  He also states that Item 18 of his DD Form 214 should be corrected to show he completed his term of service instead of indicating he did not complete his first full term of service.  He claims he did not request an early out and that he does not know why he was discharged at the time.  He further states that based on this error he is ineligible for educational benefits and was denied job training. 

3.  The applicant provides the following documents in support of his application:  DD Form 214; Veterans Service Office Letter, dated 23 September 2008; and Department of the Army Review Board Agency, Support Division, St. Louis, MO letter, dated 28 April 1998.

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 record shows he initially enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 8 March 1983 for a period of 8 years.  The DD Form 4/1 (Enlistment /Reenlistment Document) prepared during his enlistment processing contains the entry "73 Sep 26' in Item 6 (Date of Birth), which indicates his DOB is 26 September 1973.

3.  On 8 March 1993, a DD Form 398-2 (National Agency Questionnaire) and a Standard Form (SF) 88 (Report of Medical Examination) were completed on the applicant during his enlistment processing.  These documents both list his DOB as 26 September 1973.

4.  On 17 September 1993, the applicant enlisted in the Regular Army (RA) for a period of 3 years.  His record shows he was trained in and awarded military occupational specialty 11M (Fighting Vehicle Infantryman).  

5.  On 1 May 1996, the applicant's commander initiated a local bar to reenlistment on him.  The commander cited the applicant's indebtedness to the Army and Air Force Exchange Service (AAFES) and his failure to complete a family care plan as the reasons for taking the action.  On 6 May 1996, the applicant acknowledged the initiation of the bar to reenlistment and elected not to submit a statement in his own behalf.

6.  On 20 May 1996, the bar to reenlistment was approved by the appropriate authority and the unit commander officially counseled the applicant on the implications of the action and his right to appeal.  On 30 May 1996, the applicant elected not to appeal the bar to reenlistment.

7.  On 25 June 1996, the applicant requested voluntary separation under the provisions of paragraph 16-5b, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of a local bar to reenlistment which was imposed against him on 30 May 1996.  This action was based on the applicant's perception that he could not overcome the bar to reenlistment imposed on him.  


In his separation request, the applicant acknowledged that he understood that if 
his request for separation was approved, the recoupment of unearned portions of Enlistment Bonus (EB)/Selective Reenlistment Bonus (SRB) was required and that he would not be permitted to reenlist at a later date.

8.  On 19 July 1996, the applicant was honorably released from active duty under the provisions paragraph 16-5, Army Regulation 635-200, by reason of non-retention on active duty.  The DD Form 214 he was issued at the time lists his DOB as 12 May 1974 in Item 5 and Item 12c (Net Active Service This Period) confirms that he completed 2 years, 10 months, and 3 days of his 3-year enlistment at the time of his discharge.  Item 18 contains the entry "Member Has Not Completed First Full Term of Service."

9.  Army Regulation 635-200 sets forth the policies and procedures for the administrative separation of enlisted personnel of the Army.  Paragraph 16-5, in effect at the time, provided the authority for Soldiers denied or ineligible for continued active duty service to be separated upon their request.  It allowed Soldiers who perceived that they could not overcome a locally imposed bar to reenlistment to request early separation. 

10.  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 the DD Form 214.  The instructions for Item 18 state, in pertinent part, that it will contain a mandatory entry regarding the Soldier’s completion of his/her first full term of service.  It indicates that 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.  It further specifies that to determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment/reenlistment documents and compare the term(s) of enlistment to the net service in Item 12c of the 
DD Form 214.  If Soldier has completed or exceeded the initial enlistment, enter "has."  If item 12c of the DD Form 214 is less than the Soldier's initial enlistment, enter "has not." 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOB listed in Item 5 of his DD Form 214 is incorrect and should be 26 September 1973, was carefully considered and found to have merit.  The evidence of record includes documents prepared on the 

applicant during his enlistment process that verify his DOB is 26 September 1973.  As a result, it appears an administrative error occurred during the preparation of his DD Form 214 that resulted in an incorrect DOB being entered in Item 5.  Therefore, it would be appropriate and serve the interest of justice to correct Item 5 of his DD Form 214 accordingly.  

2.  The applicant's contention that he did not request an early out and that 
Item 18 of his DD Form 214 erroneously indicates he did not complete his first full term of service was also carefully considered.  However, there is insufficient evidence to support this claim.  

3.  By regulation, if the active duty service documented in Item 12c of the 
DD Form 214 does not equal the contracted term of service, a mandatory entry indicating this fact is required in Item 18.  In this case, the applicant's DD Form 4 confirms the term of his RA enlistment was 3 years.  His record also contains documents confirming he voluntarily requested separation under the provisions of paragraph 16-5, Army Regulation 635-200, based on his perception that he could not overcome a locally imposed bar to reenlistment.  Further, Item 12c of his DD Form 214 confirms he completed only 2 years, 10 months, and 3 days of his 3-year enlistment contract at the time of his release from active duty.  As a result, there appears to be no error or injustice related to the entry indicating he did not complete his first full term of service in Item 18 of his DD Form 214.  Therefore, there is an insufficient evidentiary basis to support granting this portion of the requested relief.

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 

____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 deleting from item 5 of his DD Form 214 the entry "19740512" and replacing it with the entry "19730926."

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 correction of Item 18 of the DD Form 214 to show completion of first full term of service.



      ________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)                                         AR20080017769



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ABCMR Record of Proceedings (cont)                                         AR20080017769



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