IN THE CASE OF:	  

		BOARD DATE:	  26 January 2012

		DOCKET NUMBER:  AR20110013209 


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 he completed his first full term of service.

2.  The applicant states he completed his first term of enlistment for 3 years, but the remarks block of his DD Form 214 states he did not do so.  He further states that his first term ran from 5 January 1993 to 6 January 1996, and ran without incident.  He further contends that if this statement had not been put on his DD Form 214, his separation code, reentry code and narrative reason would have been different.

3.  The applicant provides copies of his DD Form 214; DD Forms 4 (Enlistment/ Reenlistment Document); letter from the Texas Veterans Commission, dated 
4 May 2005; email communications within the Department of Veterans Affairs (VA) dated in January 2002; and a VA printout dated 8 January 2002.

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.  On 4 January 1993, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 71L (administrative Specialist).

3.  Records show that the applicant completed a tour of duty in the Republic of Korea from 3 October 1994 to 9 March 1995.  He was subsequently assigned for duty at Fort Sill, Oklahoma.

4.  On 5 September 1995, the applicant immediately reenlisted in the Regular Army for a 3 year period.

5.  Records show that the applicant was absent without leave (AWOL) from 
18 June to 30 September 1996 (105 days).

6.  The discharge packet is missing from his military records.  However, his DD Form 214 shows that he was administratively discharged on 12 December 1996, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under other than honorable conditions. He completed 3 years, 7 months and 24 days of creditable active duty.  Accordingly, he was given a Separation Program Designator (SPD) Code of KFS and an RE Code of 3.  His character of service was under other than honorable conditions.

7.  Item 18 (Remarks) of the applicant's DD Form 214 does not report his reenlistment but does state that he did not complete his first full term of service.

8.  On 18 September 2002, the Army Discharge Review board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

9.  On 16 March 2005, the applicant personally appeared before the ADRB and testified in support of changing his characterization of service and reason for discharge.

	a.  The ADRB carefully examined the applicant's record of service.  It gave full consideration of all faithful and honorable service as well as the infraction of discipline, the extent thereof, and the seriousness of the offense.

	b.  The ADRB determined that the characterization of service was inequitable based on extenuating circumstances leading to his AWOL.  It found that his overall length and quality of service; and the time that had elapsed since his discharge  partially mitigated the misconduct.  Accordingly, the ADRB voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.

	c.  The ADRB determined that the reason for discharge was both proper and equitable and voted not to change it.

10.  The applicant's DD Form 214 now shows his characterization of service as under honorable conditions, general.  Item 18 states his first term of service was not complete.

11.  Army Regulation 635-5 (Separation Documents) as then in effect, required the first entry in Item 18 to be a list of reenlistment periods for which a DD Form 214 had not been issued.  However, for Soldiers who had previously reenlisted without being issued a DD Form 214 and who were being separated with any characterization of service other than "Honorable," the first entry would be: "Continuous Honorable Active Service From (first day of service for which a DD Form 214 had not been issued) Until (date before commencement of current enlistment) then enter the specific periods of reenlistment as stated above.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of KFS was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. Additionally, the SPD/RE Code Cross Reference Table establishes RE Code 4 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show he completed his first full term of service.

2.  The evidence of record clearly shows that the applicant enlisted in the Regular Army on 4 January 1993 for 3 years.  Therefore, completion of this term of service would have occurred on 3 January 1996.  However, he reenlisted on 
5 September 1995, prior to completion of his first term.

3.  On 18 June 1996, the applicant was AWOL and remained absent for 105 days until 30 September 1996.  Accordingly, his lengthy AWOL diminished the quality of his service resulting in a less than honorable characterization of service.  This, in turn, caused that entire period of service to be less than honorable.  Accordingly, he did not receive credit for completing his first full term of service.

4.  The governing regulation for completion of the DD Form 214 clearly states that the Remarks block will identify all continuous Honorable Active Service.  
This continuous honorable service is to run from the first day of service for which a DD Form 214 was not issued until the day prior to the current enlistment.  This entry was not properly entered on the applicant's DD Form 214.  Accordingly, this entry should now be made, and it should read: "Continuous Honorable Active Duty Service from 19930104 Until 4 September 1995."

5.  The applicant's misconduct occurred on 18 June 1996, during his period of reenlistment, making the entire period of reenlistment less than honorable.  Accordingly, he did not complete his first full term of service.  Therefore, this entry should not be changed on his DD Form 214.

6.  The applicant's contention that had the remark concerning completion of his first term of service been different, so would have his SPD,RE code and narrative reason for separation, is found to be without merit.  There is no direct connection between the subject statement and the other three entries.

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 the following statements in Item 18 of his DD Form 214:

	a.  "Continuous Honorable Active Duty Service from 19930104 Until 
4 September 1995"; and

	b.  "Immediate Reenlistments this period: 19950905-19961212."

2.  The Board further determined that the evidence presented was 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 stating on his DD Form 214 that he had completed his first full term of service, or changing the SPD, RE code, or the narrative reason for separation.




      _______ _   _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)                                         AR20110013209





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013209



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1