BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090014577 


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 service time to show he completed two years of service.

2.  The applicant states, in effect, that his service time is 9 days short of two full years and he is being denied Department of Veterans Affairs (VA) medical benefits.

3.  The applicant provides two character reference letters.

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 29 June 1983.  On 5 September 1983, he was discharged from the USAR DEP and he enlisted in the Regular Army (RA) on 6 September 1983 in pay grade E-1 for a period of 3 years.  He completed training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He was advanced to pay grade E-2 on 6 March 1984.

3.  On 6 November 1984, the applicant was counseled for failing to secure two weapons in the unit arms room.

4.  On 8 November 1984, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction in the performance of his duties on 2 November 1984.  The punishment included a reduction to pay grade E-2, a forfeiture of $156.00 pay, and 7 days in the correctional control facility.  He elected to appeal the punishment in person; however, his appeal was denied.

5.  On 17 March 1985, the applicant accepted non-judicial punishment under Article 15 of the UCMJ for failing to obey a lawful order from a noncommissioned officer on 13 March 1985.   The punishment included a reduction to pay grade   E-1, a forfeiture of $100.00 pay per month for one month, and 7 days of restriction and extra duty.  He elected to appeal the punishment; however, his appeal was denied.

6.  The applicant was reduced to pay grade E-1 on 17 March 1985.

7.  On 16 May 1985, the applicant's commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against him based on his record of non-judicial punishments.  On the same day, the applicant was counseled on the basis for imposition of the bar to reenlistment.  He elected not to submit a statement in his own behalf.

8.  The applicant's bar to reenlistment was approved on 17 May 1985.

9.  On 7 August 1985, in accordance with Army Regulation (Personnel Separations - Enlisted Separations), paragraph 16-5b, the applicant requested to be discharged as he felt he could not overcome the locally imposed bar to reenlistment.  He acknowledged that if his request was approved before his normal expiration of term of service (ETS), it would be for his own convenience.

10.  On 16 August 1985, the appropriate separation authority approved the applicant's request and directed that an Honorable Discharge Certificate be issued.

11.  The applicant was honorably discharged on 26 August 1985 in pay grade 
E-1, under the provisions of Army Regulation 635-200, paragraph 16-5b, by reason of a locally imposed bar to reenlistment.  He was credited with 1 year,
11 months, and 21 days of net active service.

12.  The applicant submitted two character reference letters that attest he is a very responsible, intelligent, trustworthy individual, and one of good moral character.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 16-5b of the regulation specified that Soldiers denied reenlistment could be voluntarily separated before the expiration of their term of service.  Soldiers who perceive that they would be unable to overcome a locally imposed bar to reenlistment could request immediate separation.  Approved requests for separation would be irrevocable.  The service of Soldiers separated under this paragraph would be characterized as honorable.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to correction to his service time to show he completed two years of service.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows the applicant enlisted in the RA on 6 September 1983, for 3 years.  On 16 May 1985, he was issued a Bar to Reenlistment Certificate based on his record of non-judicial punishments.  He subsequently requested to be discharged under the provisions of Army Regulation 635-200, paragraph
16-5b, locally imposed bar to reenlistment.  His request was approved on
16 August 1985 and he was separated from active duty on 26 August 1985.  He was credited with completing 1 year, 11 months, and 21 days of net active service.

3.  The applicant's contentions have been noted.  However, he was separated prior to his normal ETS (5 September 1986) and completion of 2 years of active service based on his voluntary request to be discharged.  At the time, he acknowledged that if his request to be discharged before his normal ETS was approved it would be for his own convenience.  There is no indication that his separation prior to completion of two years service or his ETS was unjust or inequitable.  Without evidence to show otherwise, it is concluded that his amount of net active service shown on his DD Form 214 is correct.


4.  Additionally, the ABCMR does not grant requests for correction of records solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a correction of his or her records.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ____x____  ___x__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ________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)                                         AR20090014577



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ABCMR Record of Proceedings (cont)                                         AR20090014577



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