IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110008248 


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) to show the narrative reason for his separation as hardship instead of the reason currently shown.

2.  The applicant states his early discharge was based on hardship due to the death of his father, associated grief, and the administration of his father's estate.  He also believes this information should be added to allow for Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides his father’s Certificate of Death.

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 Regular Army on 13 May 1982 for a period of
2 years with an established expiration of term of service (ETS) date of 12 May 1984.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  He was advanced to the rank/grade of private first class (PFC)/E-3 on 13 July 1982, which is the highest grade he attained while serving on active duty.

3.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any documents indicating he ever applied for or that he was granted a hardship discharge by proper authority while serving on active duty.  His record also shows he served oversees in Germany from 27 August 1982 to 11 April 1984, at which time he departed Germany en route to the continental United States (CONUS) for separation processing.

4.  On 11 April 1984, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 10 months, and 29 days of creditable active service.  The DD Form 214 he was issued at the time shows in:

* Item 25 (Separation Authority) the entry "Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-6"
* Item 26 (Separation Code) the entry "LBM"
* Item 28 (Narrative Reason for Separation) the entry "Short length of time remaining on active duty precludes reassignment"

5.  The applicant provides a copy of his father’s Certificate of Death which shows his father died on 24 March 1984.

6.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 16-6 provided for the separation of overseas returnees who were within 60 days of their ETS.  This included Soldiers in the United States on temporary duty (TDY) or emergency leave from their overseas organization who, upon completion of TDY or leave were within 60 days of ETS.  This provision was to authorize separation to preclude non-productive assignments for short periods of time.

7.  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 that the SPD code LBM is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, by reason of short length of time remaining on active duty precludes reassignment.

8.  Department of Veterans Affairs “Federal Benefits for Veterans and Dependents” provides the basic eligibility requirements for DVA Health Care.  It provides 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 case, 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 VA office and would serve as a waiver of the 24-month requirement. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his DD Form 214 be amended to show the reason for his separation was hardship based on the death of his father has been carefully considered.  However, there is no evidence suggesting he requested, was qualified for, or was granted a hardship discharge based on the death of his father.

2.  Nevertheless, the evidence of record clearly shows the applicant was serving overseas at the time he was returned to the United States for separation and he was REFRAD early to preclude a non-productive assignment for a short period based on his having less than 60 days until his ETS upon his arrival in CONUS, as properly reflected on his DD Form 214.

3.  As a result of this premature separation, through no fault of the applicant, he is being unduly disadvantaged in that he is being denied DVA Medical benefits that he may be entitled to receive, 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 as an early overseas returnee at the convenience of the government. 

4.  Accordingly, it would be in the interest of justice at this time to correct the applicant’s DD Form 214 to show in Remarks (block18) that “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 to show in block18 that “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 changing his DD Form 214 to show that he was separated due to hardship.



      ___________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)                                         AR20110008248



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ABCMR Record of Proceedings (cont)                                         AR20110008248



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