IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090007729 


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 to Item 12b (Separated Date This Period) and Item 12c (Net Active Service This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 22 May 1984.  

2.  The applicant states, in effect, that his DD Form 214 should show he was separated from active duty on 23 May 1984; therefore, he should have been credited with completion of 2 years of net active service for the period covered by the DD Form 214.  He served two full years on active duty and was honorably discharged.  He also states that due to this error he is being denied Department of Veterans Affairs (VA) medical benefits.  

3.  In support of his application, the applicant provides a copy of his DD Form 214.

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 records show that he enlisted in the Army Delayed Entry Program in pay grade E-1 on 5 April 1982.  He enlisted in the Regular Army in pay grade E-3 on 24 May 1982 for 2 years.  He completed training and was awarded military occupational specialty 13B (Cannon Crewman).  He was assigned to Germany from 14 September 1982 to 22 May 1984.

3.  A DA Form 31 (Request and Authority for Leave), dated 4 April 1984, shows the applicant requested leave from 3 May to 22 May 1984 in conjunction with his separation from active duty.  In the remarks section of the DA Form 31, he signed a statement acknowledging that he had been informed and understood that his expiration of term of service (ETS) date had been adjusted from 23 May to 22 May 1984 to prevent his placement in an excess leave status of 1 day.   

4.  The applicant was released from active duty at the completion of his term of service on 22 May 1984 and was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).  

5.  The applicant was issued a DD Form 214 showing his release from active duty on 22 May 1984 in Item 12b, for the completion of his term of service.  Item 12c shows he completed 1 year, 11 months, and 29 days.  Item 21 (Signature of Member Being Separated) shows the applicant was not available for signature.  His separation documents (DD Form 214 and separation orders) were forwarded to his home address.

6.  The applicant was discharged from the USAR on 23 May 1988.

7.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated, in pertinent part, that Item 12a would contain the beginning date of the continuous period of active duty for issuance of the DD Form 214.  Item 12b would contain the Soldier's transition (separation) date of the continuous period of active duty for issuance of the DD Form 214.  Item 12c would contain the total amount of service, less lost time.

8.  Army Regulation 635-200 (Enlisted Separations), in effect at the time, prescribed the policies and procedures for the separation of enlisted Soldiers.  Section V, 1-31(2) of that regulation specified that the effective date of discharge 
may be constructive when the actual delivery of the discharge orders cannot be accomplished because of the absence of the Soldier to be discharged, such as in the case of Soldiers on authorized leave.

9.  Department of Veterans Affairs “Federal Benefits for Veterans and Dependents” 2008 Edition provides the basic eligibility requirements for VA Health Care.  It provides, in pertinent part, that veterans who enlisted after September 7, 1980, or who entered active duty after 16 October 1981, must have served 24 continuous months or the full period for which they were called to active duty in order to be eligible.  This minimum duty requirement may not apply to veterans discharged for hardship, early out, or a disability incurred or aggravated in the line of duty.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant enlisted for 2 years and completed his required active service.  However, he was placed in an ETS leave status from the date of his departure from Germany on 3 May through 22 May 1984.  His DD Form 214 was processed using his last duty date of 22 May 1984 instead of 23 May 1984 for completion of 2 full years of active duty service and forwarded to his home address.  It appears the applicant was misinformed of the effect of being placed in an excess leave status for 1 day without pay to complete two full years of active duty service.  This unjustly prevents the applicant from receiving certain VA benefits.

2.  Through no fault of the applicant, he is being unduly disadvantaged in that he is being denied VA Medical benefits that he may be entitled to receive, by virtue of his DD Form 214 not showing that he completed his first full term of service, when in fact, as far as the Army was concerned, he had fulfilled his contract and his ETS date was adjusted from 23 May to 22 May 1984 to prevent his placement in an excess leave status of 1 day.  This placed the applicant in an ETS leave status with his last duty date being 1 day short of his 2 year contract.  

3.  Accordingly, it would be in the interest of justice at this time to correct the applicant’s DD Form 214 dated 22 May 1984 to show in Item 18 (Remarks) that “The individual was separated at the convenience of the government and he has fulfilled his first full term of active service.”    

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.



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 the applicant’s DD Form 214, dated 22 May 1984, to show in Item 18 that “The individual was separated at the convenience of the government and he has fulfilled his first full term of active service” and providing him a corrected 
DD Form 214 that includes this change.

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 changing his DD Form 214, Items 12b and 12c, to show 23 May 1984 and 2 years of net active 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)                                         AR20090007729



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ABCMR Record of Proceedings (cont)                                         AR20090007729



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