BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100029839 


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, to change the date he separated from the Army to reflect 8 November 2003, instead of 7 September 2003.  

2.  He states, in effect, he entered active duty (AD) service on 8 November 2000.  He contends he served a three year term, effectively ending his military service on 8 November 2003.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that he separated the service on 7 September 2003.  

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.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he enlisted in the U.S. Army Reserve, under the Delayed Entry Program (DEP) for 8 years on 24 October 2000.  He was released from DEP status and enlisted in the Regular Army and entered AD on 8 November 2000.  After the completion of training, he served in military occupational specialty 11C (Indirect Fire Infantryman).

3.  His request for early separation to attend school is not in the available record.  However, his record contains Headquarters, Fort Stewart and Hunter Army Airfield, Orders 206-240, dated 25 July 2003.  This order shows he was scheduled to report to the Transition Point on 7 September 2003 for separation processing with a release date of 7 September 2003.

4.  Accordingly, on 7 September 2003, he was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), paragraph 5-16, to attend school.  The 
DD Form 214 he was issued shows the following entries:

* Item 12a (Date Entered AD This Period) – 2000 11 08
* Item 12b (Separation Date This Period) – 2003 09 07
* Item 12c (Net Active Service This Period) – 0002 10 00
* Item 18 (Remarks) – In part, “MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE”
* Item 21 (Signature of Member Being Separated) – his authentication confirming the information contained therein was correct
* Item 26 (Separation Code) - MCF

5.  Army Regulation 635-200 provides the Army’s enlisted separation policy.  Paragraph 5-16 provides the policy for early separation to further education.  It states, in pertinent part, that Soldiers can be discharged or REFRAD for the convenience of the Government up to 90 days before their expiration of term of service (ETS) date in order to attend a specific term at a college, university, vocational school, or technical school.

6.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  Information entered on the form should be complete and accurate. The DD Form 214 is a summary of a Soldier's most recent period of 


continuous AD to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or REFRAD.

7.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It states that, when preparing item 12 (Record of Service), to use extreme care in completing this item since post-service benefits, final pay, retirement credit, and so forth are based on this information.  It also states:     

	a.  Item 12a shows the beginning date of the continuous period of AD for issuance of this DD Form 214, for which a DD Form 214 was not previously issued;

	b.  Item 12b shows the Soldier’s transition date.  This date may not be the contractual date if the Soldier is separated early, voluntarily extends, or is extended for make-up of lost time, or retained on active duty for the convenience of the Government; 

	c.  Item 12c shows the amount of service this period, computed by subtracting item 12a from 12b.  Lost time under 10 USC 972 and non-creditable time after ETS, if any, are deducted; and 

	d.  Item 18 is used to enter Headquarters, Department of the Army mandatory requirements when a separate block is not available, and as a continuation for other entries.  In pertinent part, mandatory entries include, but are not limited to:

       (1) DATA HEREIN SUBJECT TO COMPUTER MATCHING WITHIN DOD OR WITH OTHER AGENCIES FOR VERIFICATION PURPOSES AND DETERMINING ELIGIBILITY OR COMPLIANCE FOR FEDERAL BENEFITS; and
   
       (2)  MEMBER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE.

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code MCF is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-16, by reason of early separation to attend school.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he was honorably REFRAD on 7 September 2003, under the provisions of Army Regulation 635-200, paragraph 5-16 to attend school.  

2.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on his voluntary request for early REFRAD for the purpose of attending school.

3.  Army regulation allows for the discharge or REFRAD for the convenience of the Government up to 90 days before a Soldier’s ETS date in order to attend a specific term at a college, university, vocational school, or technical school.  Based on these regulatory criteria, a Soldier is deemed to have completed the first full term of service.  

4.  Item 12b of the DD Form 214 may not contain the contractual date if the Soldier is separated early for the convenience of the government; however, it will contain the actual date separated from AD for that period.

5.  His DD Form 214 shows he completed 2 years and 10 months of net active service for that period; he completed his first full term of service; and is eligible for federal benefits.  

6.  There is no error or injustice reflected on his DD Form 214 for the period ending 7 September 2003.  Therefore, he is not entitled to the requested relief. 

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)                                         AR20100029839





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ABCMR Record of Proceedings (cont)                                         AR20100029839



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