IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100013987 


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 the following:

* character of discharge be changed from bad conduct discharge (BCD) to a general discharge
* a new DD Form 214 (Certificate of Release or Discharge from Active Duty) for his first enlistment with Fort Hood, Texas, listed in item 8b (Station Where Separated)

2.  He states he completed his first term of service on 31 October 2002 at Fort Hood, Texas.  However his DD Form 214 lists his last duty station as Fort Sill, Oklahoma.  He offers he reenlisted on 1 November 2002 at Fort Hood, Texas, and did not receive a DD Form 214 for his first term of service which was served honorably.

3.  He provides the following:

* 15 September 2006 DD Form 214
* Orders 100-410, dated 10 April 2002
* Congressional inquiry documents
* General Court-Martial Order 19, dated 10 June 2004
* Enlistment/Reenlistment Document


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 ABCMR denied the applicant's request for an upgrade of his BCD in Docket Number AR20080010849, dated 23 October 2008.  The Board stated that he did not provide nor did his record contain any documentation to show he was suffering from a medical condition that impaired his ability to know right from wrong and to adhere to the right.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth procedures for processing requests for correction of military records.  The regulation states that the ABCMR may reconsider an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not been previously reconsidered.  Such requests must provide new evidence or arguments that were not considered at the time of the ABCMR's prior consideration.  The ABCMR staff reviewed his request and examined the original ABCMR decision with the evidence that was submitted in support of that case.  His request was not received within 1 year of the ABCMR's original decision and he has failed to provide any new evidence or argument.  Therefore, his request for upgrade of his BCD will not be addressed in these proceedings.

3.  The applicant's military records show he enlisted in the Regular Army on 22 January 1998.  He reenlisted on 1 November 2002 for 5 years at Fort Hood, Texas.

4.  He was discharged on 15 September 2006 after serving 7 years, 10 months, and 20 days with a BCD.  His court-martial sentence included 7 months confinement, and he had been reassigned to the Personnel Confinement Facility at Fort Sill, Oklahoma to serve his sentence.

5.  Item 8b of his 15 September 2006 DD Form 214 lists Fort Sill, Oklahoma, as his separation station.  Item 18 (Remarks) of this form contains the entry "IMMEDIATE REENLISTMENTS THIS PERIOD -- 20021101-20030708."
6.  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 policy for the preparation of the DD Form 214.  The regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army.

7.  Paragraph 2-4h(18)(c) of the same regulation states that for enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter in item 18 "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)."  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, then "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service for which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."  Then, enter the specific periods of reenlistments as prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he enlisted in the Regular Army on 22 January 1998 and reenlisted on 1 November 2002 at Fort Hood Texas.  He is not authorized a DD Form 214 with Fort Hood, Texas, listed in item 8b for his first enlistment because DD Forms 214 are not issued when there is no break in service, and his last assignment was the Personnel Confinement Facility at Fort Sill, Oklahoma.

2.  However, the evidence of record shows he had more than one enlistment period during the time covered by his DD Form 214 and was separated with a BCD.  Therefore, his DD Form 214 should be corrected to show his first period of service as honorable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 the entry, "IMMEDIATE REENLISTMENTS THIS PERIOD -- 20021101-20030708" and

     b.  adding to item 18 of his DD Form 214 the entry "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19980122-20021031//IMMEDIATE REENLISTMENT THIS PERIOD 20021101-15 September 2006."

2.  The Board further determined 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 the issuance of a DD Form 214 for his first enlistment or entering Fort Hood, Texas, in item 8b.



      ____________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)                                         AR20100013987



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ABCMR Record of Proceedings (cont)                                         AR20100013987



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