IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100017680 


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 to Item 12b (Separation Date This Period) and Item 12c (Net Active Service This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 19 August 1999.  

2.  He states, in effect, that his DD Form 214 should show he was separated from active duty on 20 August 1999 which would credit him with completion of 3 years of service.  His enlistment document required him to serve for 3 years. He believes it was a clerical error stating his service was 2 years, 11 months, and 29 days.  He is applying for a fire fighter's position and he can't claim Veterans Employment Opportunities Act (VEOA) eligibility unless his DD Form 214 states 3 years of service.

3.  He provides:

* DD Form 4/1 (Enlistment/Reenlistment Document
* DA Form 31 (Request and Authorization for Leave)
* Active duty separation orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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.  His military records show that he enlisted in the Army Delayed Entry Program on 21 February 1996.  He enlisted in the Regular Army in pay grade E-1 on 21 August 1996, for 3 years.  He completed training and was awarded military occupational specialty 14S (Avenger Crewman).  

3.  A DA Form 31, dated 21 May 1999, shows he requested leave from 7 July to 20 August 1999 in conjunction with his separation from active duty.  

4.  Orders were published on 29 June 1999 for his reassignment to the transition point for transition processing with a date of release from active duty of 19 August 1999.

5.  He was honorably released from active duty at the completion of his term of service on 19 August 1999 and was transferred to the U.S. Army Reserve Control Group (Reinforcement).  

6.  He was issued a DD Form 214 showing his release from active duty on 19 August 1999 in Item 12b, for the completion of his term of service.  Item 12c shows a credit of 2 years, 11 months, and 29 days of net active service.  Item 18 (Remarks) contains the entry, "Member Has Completed First Full Term of Service."  Item 21 (Signature of Member Being Separated) shows he signed the DD Form 214 acknowledging the information contained on it to be correct.  

7.  Army Regulation 635-5 (Separation Documents), then in effect, governed the preparation of the DD Form 214.  It stated Item 12a would contain the beginning date of the continuous period of active duty for issuance of the DD Form 214.  Item 12b would contain the Soldier's transition (separation) date of the continuous period of active duty for issuance of the DD Form 214.  Item 12c would contain the total amount of service, less lost time, between the two dates.

8.  Army Regulation 635-200 (Enlisted Separations), then in effect, prescribed the policies and procedures for the separation of enlisted Soldiers.  Section V, 


1-31(2) of that regulation specified that the effective date of discharge may be constructive when the actual delivery of the discharge orders cannot be accomplished because of the absence of the Soldier to be discharged, such as in the case of Soldiers on authorized leave.

9.  The VEOA states individuals may be eligible for a VEOA appointment if:

* they have 5 or 10 point veterans preference 
* they are veterans who have been honorably discharged and substantially completed 3 years (not less than 2 years and 11 months) of active military service

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant enlisted for 3 years on 21 August 1996 and completed his required active service.  On 29 June 1999, he was issued orders reassigning him for separation from active duty with a release date of 19 August 1999.  He was released from active duty on 19 August 1999.  There is no evidence to show he was separated on this date for an invalid reason.  He was issued a DD Form 214 properly showing this date in Item 12b and crediting him with the proper amount of net active service in Item 12c.  Item 18 of this DD Form 214 also confirms he completed his first full term of service.  

2.  His desire to have his separation date and net active service total corrected so that he can qualify for Department of Veterans Affairs employment benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for employment benefits administered by the VA.  

3.  However, it appears that the VEOA takes into consideration the Army's requirement to sometimes release Soldiers from active duty, for the convenience of the Government, prior to the completion of their full term of service.  The VEOA states an individual may be eligible for appointment under the VEOA if he/she has substantially completed 3 years (not less than 2 years and 11 months) of active military service.  By that criterion, the applicant has substantially completed his 3 years of service.  

4.  The applicant may use this Record of Proceedings to show he has completed his first full term of service and to show that he has substantially completed his 3 years of service.

5.  In view of the foregoing, there is no basis for granting his request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____X___  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _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)                                         AR20100017680



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ABCMR Record of Proceedings (cont)                                         AR20100017680



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