BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090010179 


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 active duty service credit be corrected.

2.  The applicant states, in effect, his active duty service credit must be corrected in order for him to qualify for benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides a Congressional Inquiry packet 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 record contains a DD Form 4 (Enlistment/Reenlistment Document) that shows he initially enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 27 September 1983.  He remained in an inactive status in the DEP until 27 December 1983, at which time he was discharged from the DEP, enlisted in the Regular Army for 4 years on 28 December 1983, and entered active duty.

3.  The applicant served on active duty until 16 December 1987, at which time he was honorably released from active duty (REFRAD) and transferred to the USAR in the rank of specialist.  The DD Form 214 he was issued at the time shows he completed a total of 3 years, 11 months, and 19 days of active military service and 3 months and 1 day of prior inactive service at the time of his REFRAD.  Item 18 (Remarks) is void of an entry regarding completion of first full term of service.  Item 28 (Narrative Reason for Separation) contains the entry "Expiration of Term of Service - Holiday Transition Program."

4.  The record shows the applicant subsequently served in the Army National Guard from 23 April 1990 through 1 November 1994 and then served in the USAR through 3 September 1996, at which time he was honorably discharged.

5.  Commander, U. S. Total Army Personnel Command (PERSCOM) message 150800Z February 1995 clarified an earlier message concerning the requirement to add a statement in item 18 of the DD Form 214 concerning a member’s initial term of service.  It directed that the following statement would be added to all DD Forms 214 without exception: “Member (has) (has not) completed first term of service.”  The remark was required for employment agencies to determine the eligibility criteria for former service members applying for unemployment compensation.  Normally, a member should not be considered to have completed the first full term of active service if separation occurs prior to the end of the initial contracted period of service.  However, if a member reenlists prior to the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment and should be considered to have been completed upon execution of a reenlistment contract.  If a soldier has reenlisted, he/she is considered to have completed the first full term of enlistment.

6.  Army Regulation 635-5 (Separation Documents), currently in effect,  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 (Certificate of Release or Discharge from Active Duty).  Chapter 2 contains item-by-item preparation instructions for the DD Form 214.  The instructions for item 18 state, in pertinent part, that it is mandatory to enter a statement indicating if the member has or has not completed his/her first full term of service, which is used to help the State in determining eligibility for benefits.  It indicates that routinely a Soldier should not be considered to have completed the first full term of service if separation occurs before the end of the initial contracted period of service.  However, as an exception, if the reason for separation is completion of required service (expiration of term of service) the statement "has" will be entered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his service credit needs to be corrected in order for him to qualify for VA benefits was carefully considered and found to have merit.

2.  Although not required when he was released from active duty in 1987, in accordance with the current governing regulation an entry indicating that a member has or has not completed his/her first full term of service is required in item 18 of the DD Form 214.  For members separated by reason of completion of required service/expiration of term of service, the entry should indicate he/she "has" completed the first full term of service.

3.  The evidence of record confirms the applicant was separated from active duty by reason of expiration of term of service - holiday transition program.  Therefore, as an exception to policy, it would be appropriate to add the entry "Member Has Completed First Full Term of Service" to item 18 of his DD Form 214.

4.  The applicant is advised that the administration of veterans' benefits is not within the purview of the Board and any questions regarding his eligibility for benefits administered by the VA should be addressed to that agency.

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 adding the entry "Member Has Completed First Full Term of Service" to item 18 of his DD Form 214 and by providing him a correction to his DD Form 214 that reflects this change.



      ___________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)                                         AR20090010179



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ABCMR Record of Proceedings (cont)                                         AR20090010179



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