IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110003505 


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 correction of item 12c (Net Active Service This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he completed 2 years of service.

2.  The applicant states:

* The record of his service in the year 1984 does not reflect it was a leap year (366 days)
* He used the standard formula used by the Department of Defense to calculate his active duty time
* He served 31 days in 1982; 365 days in 1983; and 334 days in 1984 for a total of 730 days or 24 months/2 years
* He enlisted in the Regular Army (RA) for a period of 2 years
* He served 4 years in the U.S. Army Reserve (USAR)
* He received honorable discharges for his RA and USAR service 
* The incorrect net service days on his DD Form 214 resulted in the denial of Department Veterans Affairs (DVA) benefits for 2 years of creditable active service  

3.  The applicant provides:

* his DD Form 214
* a DD Form 215 (Correction to 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 enlisted in the RA on 1 December 1982 for a period of 2 years.  Orders 190-43, issued by the 2nd Armored Division, Germany, dated 23 August 1984, reassigned him to the U.S. Army Transition Point, Fort Jackson, SC, for the purpose of separation processing, with a reporting date of 28 November 1984, followed by assignment to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation.  The orders further state that his date of relief from active duty (REFRAD) unless changed or rescinded was
30 November 1984.  However, a 1st endorsement, issued by the U.S. Army Transition Point, Fort Jackson, dated 29 November 1984, changed his effective date of REFRAD to 29 November 1984.  It also changed his assignment (after separation processing) to the USAR Control Group (Annual Training).

3.  Item 12c of his DD Form 214 shows he served 1 year, 11 months, and
29 days of creditable active service.

4.  His total length of service for the period 1 December 1982 through 
29 November 1984 is 1 year, 11 months, and 29 days as follows:

      Year(s)   Month(s)    Day(s)

      1984         11              29     (Separation Date)
    - 1982         12                1     (Date of Entry) 
    =      1         11              28
    +                                     1      (Inclusive Day)
    =      1          11             29

5.  There is no evidence that shows he effectively completed 2 years of creditable active service during his RA service.

6.  Army Regulation 635-10 (Processing Personnel for Separation), paragraph
3-5 (time limits for completion of final transition processing), provides, in pertinent part, that overseas returnees will be separated on the first workday after arrival at the Separation Transfer Point, when possible.  All other Soldiers will be separated on their scheduled transition date, except those who elect to separate on the last workday before a weekend or holiday.

7.  Department of Veterans Affairs (DVA) booklet, “Federal Benefits for Veterans and Dependents,” 2008 edition, provides the basic eligibility requirements for DVA Health Care.  It provides, in pertinent part, 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.

8.  In the processing of a previous case with the same issue, a staff member contacted officials at the DVA, Health Eligibility Career Center, in Atlanta, GA, 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 DVA field operating agency and receive the benefits to which they would be entitled.  Officials at the DVA 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 DVA office and would serve as a waiver of the 24-month requirement. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he served 2 years of continuous service in the Army. While the evidence of record clearly shows he only served 1 year, 11 months, and 29 days of total active service, which was 1 day short of his 24-month contract, the evidence of record also shows it appears this early separation occurred only through the convenience of the government.

2.  It also appears he was serving overseas at the time he was returned to the United States for separation processing and because his scheduled separation date was supposed to be on 30 November 1984, he should have been discharged on that date.  However, he was returned to the United States on
29 November 1984 and he was released from active duty on that same day.


3.  As a result of this premature separation and through no fault of his own, the applicant is being unduly disadvantaged in that he is being denied DVA benefits that he may otherwise be entitled to.

4.  There is insufficient evidence in which to correct his DD Form 214 to show he completed 2 years of creditable active service.  However, it would be in the interest of justice at this time to correct his DD Form 214 to show in item 18 (Remarks) the entry, “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 adding to item 18 of his DD Form 214 the entry, “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 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 correcting item 12c of his
DD Form 214 to show he completed 2 years of active service.



      _____________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)                                         AR20110003505



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003505



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1