BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100010009 


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 his first term of enlistment and he held military occupational specialties (MOS) 11H and 11B.

2.  The applicant states he has an honorable discharge (HD) on file and he did complete his first term of enlistment.  He further states that no one verified he had MOS's 11H and 11B and that he secured his education benefits by continuous honorable service during his first term of enlistment.

3.  The applicant provides a copy of his HD Certificate, Oath of Reenlistment, Army Good Conduct Medal (AGCM) Certificate, and 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 enlisted in the Regular Army on 23 April 1996 for a period of
3 years.  He reenlisted on 2 June 1998, again for a period of 3 years.  Prior to reenlisting he had completed 2 years, 1 month, and 10 days of active service.  His record shows that during his Army service he was trained in and awarded MOS 11H (Heavy Anti-Armor Weapons Infantryman) and MOS 11M (Fighting Vehicle Infantryman).

3.  A DD Form 2366 (Montgomery GI Bill Act of 1984 (MGIB)), dated 25 April 1996, shows the applicant elected to participate in the MGIB.

4.  Permanent Order 113-86, issued by the 502d Personnel Services Battalion, 3d Personnel Group, Fort Hood, TX, dated 23 April 1999, announced award of the AGCM to the applicant for exemplary behavior, efficiency and fidelity during the period 23 April 1996 to 22 April 1999.

5.  A DD Form 458 (Charge Sheet) shows the applicant was charged with being absent without leave (AWOL) from on or about 14 March to on or about 
22 September 2000.

6.  On 28 September 2000, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial.

7.  On 11 December 2001, the separation authority approved the request and directed his discharge under other than honorable conditions (UOTHC).  On
9 January 2002, the applicant was discharged accordingly.  

8.  The DD Form 214 issued to the applicant at the time of his discharge shows:

* in item 11 (Primary Specialty) - 11B1P  00  INFANTRYMAN--3 YRS-
6 MOS
* in item 18 (Remarks) - MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE

9.  The HD Certificate and Oath of Reenlistment provided by the applicant shows he was honorably discharged on 1 June 1998 and he took the oath for reenlistment on 2 June 1998.

10.  Military Personnel (MILPER) Message Number 01-205 announced the deletion of MOS 11H and 11M and reclassification of individuals serving in either MOS into MOS 11B.  The effective date of reclassification was 30 September 2001.


11.  Army Regulation 635-5 (Separation Documents) states item 11 of the
DD Form 214 will be completed as follows:  From the Enlisted Record Brief (ERB), enter the titles of all MOS served for at least 1 year and include for each MOS the number of years and months served.  For time determination, 16 days or more count as a month.  Do not count basic training and AIT.

12.  Army Regulation 635-5 states, in pertinent part, item 18 of the DD Form 214 will include the following information: 

	a.  Mandatory entry: “SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE.”  This information assists the State in determining eligibility for unemployment compensation entitlement.

		(1)  Routinely, a Soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service.  However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.

		(2)  To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment/reenlistment documents and compare the term(s) of enlistment to the net service in block 12c (Net Active Service This Period) of the DD Form 214.  If the Soldier has completed or exceeded the initial enlistment, enter “has.”  If item 12c of the DD Form 214 is less than the Soldier’s initial enlistment, enter “has not.”

	b.  For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” (specify dates) in item 18.  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter “Continuous Honorable Active Service From [first day of service which DD Form 214 was not issued] Until [date before commencement of current enlistment]."  Then, enter the specific periods of reenlistments.

13.  The MGIB-Active Duty (MGIB-AD or Title 38, U.S. Code, chapter 30) is an educational assistance program enacted by Congress to attract high quality men and women into the Armed Forces by providing education and training opportunities to eligible persons.  The Department of Veterans Affairs (VA) administers the program.  Soldiers who enlisted for 36 or more months of active service and served between 1 July 1985 and 1 November 2000 must have served 36 months and received an HD to qualify for benefits.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request for correction of his DD Form 214 to show he completed his first enlistment, but does not support correction of his DD Form 214 to show he held MOS's 11H and 11B.

2.  The applicant reenlisted before the completion of his initial 3-year contracted period of service, effectively redefining his initial period of service by virtue of the reenlistment contract.  Therefore, he is entitled to correction of his DD Form 214 to include the statement "Soldier has completed first full term of service."

3.  The applicant reenlisted without being issued a DD Form 214 and he was later discharged with a UOTHC discharge.  In accordance with Army Regulation
635-5, he is entitled to correction of his DD Form 214 to include the statement "Continuous honorable active service from 19960423 until 19980601."

4.  The Army deleted MOS 11H prior to the applicant's discharge.  The evidence of record shows he was properly reclassified into MOS 11B, which is shown on his DD Form 214.  The evidence of record does not show, nor has the applicant provided evidence showing, that the absence of MOS 11H on his DD Form 214 is unjust or inequitable.  Therefore, he is not entitled to correction of his DD Form 214 to show he held MOS 11H.  

5.  The applicant's assertion that he secured his MGIB benefits with honorable service during his first enlistment is noted, and his award of the AGCM indicates he served honorably for 36 months.  The fact remains, however, that the applicant's second period of service was characterized as UOTHC.  Eligibility for MGIB benefits is a matter within the purview of the VA.  The applicant may submit any documents corrected as a result of these proceedings to VA officials for determination of his entitlement to educational benefits.

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:

	a.  deleting from item 18 of his DD Form 214 the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE," and

	b.  adding the following entries to item 18 of his DD Form 214:

* SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
* CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19960423 THROUGH 19980601
* IMMEDIATE REENLISTMENT THIS PERIOD FROM 19980602 THROUGH 20020109

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 correction his DD Form 214 to show he held MOS 11H.



      __________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)                                         AR20100010009



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ABCMR Record of Proceedings (cont)                                         AR20100010009



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