IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100015713 


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 served on active duty for a full 24 months.

2.  The applicant states he enlisted for a 24-month period and was only given credit for 1 year, 11 months, and 24 days.  He was told he is not eligible to receive veterans' benefits because he did not complete 24 consecutive months of service.

3.  The applicant provides a letter from the Department of Veterans Affairs (VA).

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 records show he enlisted in the Regular Army on 21 March 1984 for a period of 2 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 16R (Air Defense Artillery Short Range Gunnery Crewman).  He was honorably released from active duty on 14 March 1986 in the rank/grade of private first class/E-3.

3.  The DD Form 214 he was issued for this period shows he completed 1 year, 11 months, and 24 days of creditable active service with no lost time.  Item 23 (Separation Authority) of this form shows "chapter 4, Army Regulation 635-200 (Personnel Separations)" and item 28 (Narrative Reason for Separation) shows "completion of term of service."

4.  He again enlisted in the Regular Army on 18 November 1986 in MOS 16R.  He was discharged on 18 February 1988 under the provisions of Army Regulation 635-200, chapter 10.  The DD Form 214 he was issued for this period shows he completed 10 months and 12 days of creditable active service with 138 days of lost time.

5.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states that item 12 (Record of Service) shows the record of service.  Extreme care is used when completing this item since post-service benefits, final pay, retirement credit, and so forth are based on this information.

6.  VA "Federal Benefits for Veterans and Dependents" 2008 Edition provides the basic eligibility requirements for VA Health Care.  It provides that veterans who enlisted after 7 September 1980 or who entered active duty after 16 October 1981 must have served 24 continuous months or the full period for which they were called to active duty in order to be eligible.  This minimum duty requirement may not apply to veterans discharged for hardship, early out, or a disability incurred or aggravated in the line of duty.

7.  In the processing of a previous case, a staff member contacted officials at the VA Health Eligibility Career Center in Atlanta, Georgia, in an attempt to ascertain what the appropriate action would be for the Board to direct in cases such as the applicant's that would allow all such veterans to go to any VA field operating agency and receive the benefits to which they were entitled.  Officials at the VA opined that if a statement to the effect that an individual had been separated at the convenience of the government and that the individual had fulfilled his or her first full term of enlistment was entered in the remarks section of the DD Form 214, it would be acceptable in any VA office and would serve as a waiver of the 24-month requirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214, dated 14 March 1986, should be corrected to reflect he served on active duty for 24 months.

2.  The evidence of record confirms his first enlistment was for a period of 2 years and he served from 21 March 1984 to 14 March 1986.  His DD Form 214 shows he was released from active duty by reason of completion of term of service after serving a total of 1 year, 11 months, and 24 days of creditable active service during this period.

3.  As a result of this premature separation, through no fault of the applicant he is being unduly disadvantaged in that he is being denied VA benefits that he may be entitled to receive by virtue of his DD Form 214 not showing he completed his first full term of service when, in fact, as far as the Army was concerned, he had fulfilled his contract and was separated at the convenience of the government.

4.  Accordingly, it would be in the interest of justice at this time to amend item 18 (Remarks) of the applicant's DD Form 214 for the period ending 14 March 1986 to state, "The individual was separated at the convenience of the government and has fulfilled his first full term of active service."

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 amending item 18 of the applicant’s DD Form 214 for the period ending 14 March 1986 to state, "The individual was separated at the convenience of the government and has fulfilled his first full term of active service."

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 amending his DD Form 214 to show he served 24 months of active duty.



      ____________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)                                         AR20100015713



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ABCMR Record of Proceedings (cont)                                         AR20100015713



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