IN THE CASE OF:	  

		BOARD DATE:	    11 October 2011

		DOCKET NUMBER:  AR20110005517 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his date of release from active duty (REFRAD) as 1 October 1982.

2.  The applicant states he completed his 2-year enlistment in the Regular Army (RA); however, his DD Form 214 shows he only completed 1 year, 11 months, and 27 days.  As a result, the Department of Veterans Affairs (VA) cannot approve his application for benefits.

3.  The applicant provides a copy of his 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.  Enlistment/Travel Order Number 199-13, issued by the Armed Forces Examining and Entrance Station, Baltimore, Linthicum Heights, Maryland, dated 1 October 1980, indicates the applicant entered the U.S. Army on 1 October 1980 with immediate assignment to active duty.

3.  On 19 December 1980, the applicant departed Fort Leonard Wood, MO, for duty in the Federal Republic of Germany (FRG).

4.  A DA Form 2A (Personnel Qualification Record - Part I) prepared on 3 March 1982, indicates the applicant's expiration of term of service (ETS) as
30 September 1982.

5.  Orders 95-15, issued by the 178th Personnel Service Company, dated
21 April 1982, reassigned the applicant to the U.S. Army Separation Transfer Point, Fort Dix, NJ, for the purpose of separation processing with a reporting date of 26 August 1982.  He departed the FRG on 23 August 1982.

6.  The applicant's DD Form 214 shows in:

	a.  Item 12a (Date Entered Active Duty This Period) the entry 1 October 1980;

	b.  Item 12b (Separation Date this Period) the entry 27 September 1982;

	c.  Item 12c (Net Active Service this Period) the entry 1 year, 11 months, and 27 days;

7.  The applicant's DD Form 214 further shows in:

	a.  Item 23 (Type of Separation) the entry "Released from Active Duty";

	b.  Item 24 (Character of Service) the entry "Honorable";

	c.  Item 25 (Separation Authority) the entry "Para 5-12 AR 635-200";

	d.  Item 26 (Separation Code) the entry "LBM"; and

	e.  Item 28 (Narrative Reason for Separation) the entry "Short length of time remaining on active duty precludes reassignment."

8.  Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214.


	a.  It provides that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

	b.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service.  It provides that the entry in Item 12b will be the Soldier's transition date.

	c.  It further provides that Item 18 (Remarks) will contain an entry indicating whether the Solder had or had not completed his first full term of service.

9.  Army Regulation 635-200 (Personnel Separations):

	a.  In effect at the time, provided in Section V for the separation of enlisted personnel to preclude nonproductive reassignments for short periods of time.  Paragraph 5-12 (Overseas Returnees) stated that specified commanders were authorized to separate, for the convenience of the Government, those enlisted persons returned to the United States after completing the normal overseas tour.

	b.  A subsequent change to this regulation, effective on or about 20 July 1984, provided in paragraph 4-1 that a member would be separated upon ETS or fulfillment of service obligation.  This included members within 10 days of the date of ETS who had returned to the United States for separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show his date of release from active duty as 1 October 1982 because the VA cannot approve his application for benefits.

2.  The evidence of record clearly shows he applicant entered active duty on
1 October 1980 and he was honorably REFRAD on 27 September 1982 as an overseas returnee, completing 1 year, 11 months, and 27 days of creditable active service.  It would not be appropriate to change either of these dates to show he had completed more service than he actually did.  Therefore, there is no basis for correcting his DD Form 214 to show any other date other than his actual separation date.

3.  The evidence of record clearly shows the applicant completed his normal overseas tour of duty and he was returned to the United States within 10 days of his ETS.  Accordingly, he was separated for the convenience of the Government.  


The governing regulation indicates that Soldiers returned in this manner were considered to have completed their full term of active duty service.

4.  At the time of the applicant's separation, the governing regulation did not require a remark on the DD Form 214 to clarify that the Soldier had or had not completed his/her first full term of service.  While there is no error or injustice in the record, it would be appropriate, as a matter of equity and to preclude any harm to the applicant, to add a remark to his DD Form 214 stating that he had completed his first full term of 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 "Soldier has completed his first full term of 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 changing the actual date of his release from active duty on his DD Form 214.



      __________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)                                         AR20110005517



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005517



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1