IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100021538 


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) by amending item 12b (Separation Date This Period) to show 11 December 1983 [intended date is 10 December 1983] instead of 5 December 1983. 

2.  He states, in effect, he served his full 2-year term and then transferred to the U.S. Army Reserve (USAR).  He contends that due to a 6 day [intended to be 
5 day] discrepancy, he is not eligible for Department of Veterans Affairs (VA) medical benefits. 

3.  He did not provide any additional documentation. 

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.  A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he initially enlisted in the USAR Delayed Entry Program (DEP) for 6 years on 10 September 1981.  He was released from DEP status and enlisted in the Regular Army for 2 years on 11 December 1981. 

3.  Item 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he entered active duty as a trainee on 11 December 1981.  He served in military occupational specialty 95B (Military Police).  This item also shows he was released from active duty (REFRAD) on 5 December 1983 and he was assigned to the 301st Military Police, Prisoner of War (POW) Camp, Inkster, MI on 6 December 1983. 

4.  His military personnel record contains a copy of Orders 339-205 issued by Headquarters, U.S. Army Training Center and Fort Dix on 5 December 1983.  These orders show he was REFRAD on 5 December 1983 and reassigned to the 301st Military Police, POW Camp, Inkster, MI on the date immediately following his REFRAD. 

5.  His DD Form 214 shows he entered active duty on 11 December 1981.  Item 12b (Separation Date This Period) shows he was honorably REFRAD on 
5 December 1983; and transferred to the 301st Military Police, POW Camp, Inkster MI (a U.S. Army Reserve unit).  Item 12c (Net Active Service This Period) shows he completed a total of 1 year, 11 months, and 25 days. 

6.  His military personnel record also contains a Statement of Service, dated 
24 October 1986.  This form shows he enlisted in the Regular Army on 
11 December 1981, and he was REFRAD on 5 December 1983.  He was transferred to the USAR on 6 December 1983.

7.  His record is void of evidence showing he was REFRAD on 10 December 1983; which would have completed his 2 year enlistment. 

8.  Army Regulation 635-5 (Separation Documents), then in effect, governed the preparation of the DD Form 214.  Interim Change Number 1 provides for the entries in the items indicated:

	a.  Item 12a (Date Entered Active Duty This Period) - enter the beginning date of the continuous period of active duty for which the DD Form 214 is being issued.

	b.  Item 12b - Enter the date of separation from active duty.

	c.  Item 12c (Net Active Service This Period) - is computed by subtracting item 12a from item 12b and then deducting any lost time and non-creditable service after the date of discharge.

9.  Department of Veterans Affairs “Federal Benefits for Veterans and Dependents” 2008 Edition provides the basic eligibility requirements for VA Health Care. It provides, in pertinent part, that veterans who enlisted after September 7, 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.

9.  In the processing of a previous this case, a staff member contacted officials at the VA 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 they were entitled to.  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 they had fulfilled their 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 that due to a 5-day discrepancy in his release date, he is not eligible for VA medical benefits. 

2.  A copy of Orders 339-205 shows he was REFRAD on 5 December 1983 for a direct assignment to a USAR unit, which is indicative of his willingness to continue to serve his country.   

3.  As a result of his immediate enlistment in the USAR, he is being unduly disadvantaged in that he is being denied VA medical benefits that he would have been entitled to by virtue of his DD Form 214 not showing that 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 early at the convenience of the government to take a USAR assignment. 

4.  Accordingly, it would be in the interest of justice at this time to correct his 
DD Form 214 for the period ending 5 December 1983 to add the following entry in item 18 (Remarks):  “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 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 correcting his DD Form 214 for the period ending 5 December 1983 to add the entry:  “The individual was separated at the convenience of the government and has fulfilled his first full term of active service” in item 18.     

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 showing he separated on 
10 or 11 December 1983.  

3.  The Board wants him and all others to know that the sacrifices he made in service to the Nation are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _  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)                                         AR20100021538



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ABCMR Record of Proceedings (cont)                                         AR20100021538



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