IN THE CASE OF:	  

		BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100000849 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he completed 2 years of active service by showing the following:

* item 12a (Date Entered AD [active duty] This Period) "870317"
* item 12b (Separation Date This Period) "890317"
* item 12c (Net Active Service This Period) "020001"
* item 18 (Remarks) "Delayed Entry Program (DEP) 870226-870316"

2.  The applicant states he was sworn in at Fort Benning on 2330 hours on 17 March 1987 and was released from active duty on 17 March 1989.  He further states that he is ill and his DD Form 214 needs to show an additional 2 days of active duty so he can receive medical treatment.

3.  The applicant provides a copy of: 

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* his DD Form 214
* DA Form 1811 (Physical Data and Aptitude Test Scores upon Release from Active Duty)
* letter of appreciation from Major General Krausz



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 he entered the Regular Army on 18 March 1987 to serve a 2-year active duty enlistment.  He completed initial entry training, was awarded the military occupational specialty of indirect fire infantryman, and was promoted to pay grade E-4.

3.  His DD Form 214 shows he was honorably released from active duty on 15 March 1989 and transferred to the California Army National Guard.

4.  The DD Form 214 he received shows his reason for separation as expiration term of service.  It did not state in item 18 that he completed his first full term of service.  His DD Form 214 also shows the following:

* item 12a "87 03 18"
* item 12b "89 03 15"
* item 12c "01 11 28"
* item 18 "DEP 870226-870317"

5.  His DD Form 4 (Enlistment or Reenlistment Agreement) and his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) show he enlisted in the California Army National Guard on 16 March 1989.

6.  The applicant provided a letter from the Commanding General, dated 17 March 1989, expressing his appreciation for the applicant's service on behalf of the Secretary of the Army.  He also provided a copy of a DA Form 1811, dated 17 March 1989, which indicates his physical condition on 17 March 1989.  The document shows he signed it on "010289."

7.  Orders 244-7, dated 7 December 1988, providing for his assignment to the separation transition point, stated the date of relief from active duty unless changed or rescinded was 17 March 1989.

8.  Army Regulation 635-5 (Separation Documents) states a DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty service.  It provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge.  The current regulation prescribes the mandatory entry, "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE" in item 18.

9.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 4-2f provides that Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) defines the various service obligations incurred by military personnel upon initial entry into military service and prescribes the methods of fulfillment.

10.  Army Regulation 135-91 prescribes policies and procedures governing the various types of service obligations and participation requirements.  Paragraph 
3-7 of this regulation provides that for the purpose of satisfying the active duty requirement of a statutory or contractual obligation, officers and enlisted Soldiers are credited with completing 2, 3, 4, or 5 years of active duty when they serve to within 90 days of the 2, 3, 4, or 5 year period.

11.  Title 10, U. S. Code, section 1171, provides for the early release of any regular enlisted member of an armed force within three months before the expiration of his or her term of service or extended enlistment.  This law states that discharge under section 1171 does not affect any right, privilege, or benefit that a member would have had if he or she had completed their enlistment or extended enlistment, except that the service member is not entitled to pay and allowances for the period not served.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 and DD Form 1966/5 indicate he entered active duty on 18 March 1987.  His DD Form 214 and NGB Form 22 show he joined the Army National Guard on 16 March 1989 indicating he was released from active duty on 15 March 1989 instead of his expiration term of service date.  As such, his DD Form 214 is correct as constituted regarding items 12a, 12b, 12c and 18 and he is not entitled to correction of these items on his DD Form 214.

2.  Orders assigning him to the transition point, the letter of appreciation he provided, and the DA Form 1811 showing the date of 17 March 1989 indicate an anticipated 17 March release date.  As such, the preponderance of evidence indicates the applicant was released from active duty 2 days early for the convenience of the government.  He shouldn't be disadvantaged by an early separation caused through no fault of his own.  As such, in the interest of justice it would be appropriate to correct his DD Form 214 to show in item 18, "individual separated early at the convenience of the government and has fulfilled his first full term of service."

3.  In view of the foregoing, the applicant is entitled to have his records corrected as shown 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 the DD Form 214 of the individual concerned be corrected by adding to item 18, "individual separated early at the convenience of the government and has fulfilled his first full term of service."

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 correcting the DD Form 214 to show he completed 2 years of 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)                                         AR20100000849



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ABCMR Record of Proceedings (cont)                                         AR20100000849



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