IN THE CASE OF:	  

		BOARD DATE:	       22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007978 


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, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 July 1990 be corrected to show his prior 3 years of honorable service.  In addition, he further requests that his DD Form 214 be corrected to show his service in Germany.

2.  The applicant states, in effect, prior to his reenlistment he completed 3 years of honorable service from 1986 to 1989 and it should be reflected on a separate DD Form 214.  The applicant further states that his DD Form 214 should be corrected show that he served in Germany. 

3.  The applicant provides no additional documentation in support of this case.

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 Official Military Personnel File (OMPF) provided to the Board does not contain his full military records for his active duty service in Germany (i.e. military orders, awards, enlisted qualification record etc.)  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  In addition, the applicant's DD Form 214, special court-martial orders, separation orders, initial enlistment, and reenlistment documents were available.

3.  The applicant's records contain a DD Form 4/1 (Enlistment or Reenlistment Agreement - Armed Forces of the United States), dated 30 April 1985, that shows the applicant enlisted in the U. S. Army Reserve (USAR) delayed entry program (DEP) on 30 April 1985 for a period of 8 years.  On 16 October 1985, the applicant was discharged from the DEP for the purpose of enlisting in the Regular Army (RA).

4.  The applicant's records contain a DD Form 4/3, dated 17 October 1985, that shows he enlisted in the RA on 17 October 1985 for a period of 3 years.  On an unknown date, the applicant was assigned to Germany.  

5.  The applicant's records contain a DD Form 4/1, dated 19 May 1988, that shows he reenlisted at Baumholder, Germany on 19 May 1988 for a period of 
5 years.  Prior to his reenlistment, he had completed 2 years, 7 months, and 
2 days of active military service, he departed Germany on an unknown date and was assigned to Fort Carson, Colorado.

6.  On 31 July 1990, the applicant was discharged from the Army with a bad conduct discharge, as result of court-martial.  The applicant completed a total of 4 years, 9 months, and 14 days of creditable active service with 32 days of lost time due to being absent without leave (AWOL).

7.  The applicant's DD Form 214 ending 31 July 1990 covers his entire period of active duty service:

a. item 12a (Date Entered Active Duty this Period) shows the entry
“85 10 17” which is 17 October 1985;

   b.  item 12b (Separation Date this Period) shows the entry “90 07 31” which is 31 July 1990;

b. item 12c (Net Active Service this Period) shows the entry 4 years,
9 months, and 4 days;

   d.  item 12d (Foreign Service) shows the entry 00 years, 00 months, and 00 days; 

   e.  item 18 (Remarks) indicates that the applicant was discharged on temporary records and that some information was not available.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized preparation of the DD Form 214.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  For item 12f (Foreign Service) it states enter the total amount of foreign service completed during the period covered in block 12c.  Paragraph 1-4b(5) states that a DD Form 214 will not be prepared for enlisted members discharged for immediate reenlistment in the RA.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 ending on 31 July 1990 should be corrected to show 3 years of prior honorable service.  The available evidence shows the applicant had completed 2 years, 7 months, and 2 days of honorable service prior to reenlisting on 19 May 1988.  However, Army Regulation 635-5 provides that a DD Form 214 will not to be prepared for a Soldier who immediately reenlisted in the RA.  

2.  Item 18 should be corrected to show he reenlisted on 19 May 1988.

3.  The applicant further contends that his DD Form 214 should be corrected to show his foreign service in Germany.  However, the available evidence is not sufficient to show the exact dates that he served in Germany or the duration of his period of service.  Therefore, there is insufficient evidence to change item
12f of his DD Form 214.

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 adding to item 18 of his DD Form 214 "REENLISTMENT 19 May 1988."

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 adding foreign service to item 12f of his DD Form 214.




      _______ _   _XXX______   ___
               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)                                         AR20090007978



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007978



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1