IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100015698 


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 he be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for his first period of service from 3 September 2002 to 8 December 2004. 

2.  He states, in effect, he needs a separate DD Form 214 for his first period of service so that he may apply for Department of Veterans Affairs (VA) benefits. 

3.  He provides 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’s military records show he enlisted in the Regular Army (RA), in pay grade E-2, on 3 September 2002, for 4 years.  He completed training and was awarded military occupational specialty 11B (Infantryman).  He was promoted to pay grade E-4 on 1 August 2004.

3.  He was honorably discharged for immediate reenlistment on 8 December 2004 and he was not issued a DD Form 214.  He reenlisted on 9 December 2004 for 4 years.  He was promoted to pay grade E-5 on 1 January 2006.

4.  On 28 June 2007, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully using cocaine between 12 May 2007 and 14 May 2007.  

5.  On 19 December 2007, he was convicted pursuant to his pleas by a general court-martial of two specifications of assault with a dangerous weapon.  The convening authority approved a sentence of reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 42 months, and discharge from the service with a dishonorable discharge.

6.  On 29 May 2009, the U.S. Army Court of Criminal Appeals affirmed the sentence.  There is no evidence he petitioned the U.S. Court of Appeals for the Armed Forces for a review of his case.

7.  The applicant was discharged on 28 August 2009 in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of a conviction by court-martial.  His service was characterized as dishonorable.  He was credited with 5 years, 5 months, and 18 days of net active service and lost time from 19 December 2007 to 26 June 2009.

8.  His DD Form 214 shows in Item 18 (Remarks) the following entry, "Immediate Reenlistments This Period -- 20020903-20041208, 20041209-20090828."

9.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states the DD Form 214 is a summary of a Soldier's most recent period of continuous service.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Paragraph (b)1 of the regulation specifies a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.



10.  Army Regulation 635-5 also specifies for enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, the following entry will be entered 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," enter "Continuous Honorable Active Service From" (first date of service which the DD Form 214 was not issued) until (date before commencement of current enlistment).  Then, enter the specific periods of reenlistments as previously prescribed.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a separate DD Form 214 for his period of service from 3 September 2002 to 8 December 2004.  The evidence of record shows he initially enlisted in the RA on 3 September 2002.  He was honorably discharged for immediate reenlistment on 8 December 2004 and was properly not issued a    DD Form 214.  He reenlisted on 9 December 2004 and was dishonorably discharged on 28 August 2009.  

2.  He was issued a DD Form 214 showing in Item 18, "Immediate Reenlistments This Period -- 20020903-20041208, 20041209-20090828."  In accordance with regulatory guidance a DD Form 214 will not be issued to Soldiers who immediately reenlist.  However, item 18 of this DD Form 214 should also show the following entry, "Continuous Honorable Active Service From -- 20020903-20041208."  

3.  In view of the foregoing, he is not entitled to a DD Form 214 for his period of service from 3 September 2002 to 8 December 2004.  However, he is entitled to correction to his DD Form 214 to also show the following entry, "Continuous Honorable Active Service From -- 20020903-20041208" in Item 18.  

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 adding 
to Item 18 the following entry, "Continuous Honorable Active Service From -- 20020903-20041208" and issuing him a document that shows this correction.

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 issuing the applicant a
DD Form 214 for his period of service from 3 September 2002 to 8 December 2004.



      _______ _   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)                                         AR20100015698



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ABCMR Record of Proceedings (cont)                                         AR20100015698



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