IN THE CASE OF:	  

		BOARD DATE:  19 July 2012

		DOCKET NUMBER:  AR20110023448 


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 his separation date as 19 November 1989.

2.  He states his DD Form 214 shows his separation date as 17 November 1989 and his entry date as 19 November 1987 which leaves his record short "2" days for Department of Veterans Affairs (VA) benefits.  He went to Fort Knox, KY for 10 days when he enlisted in August 1987.  Additionally, he states that he could not take leave from Panama; therefore, he received pay for 45 days of leave when he was released.

3.  He provides 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.  The applicant’s DD Form 4 (Enlistment/Reenlistment Document) shows he enlisted in the U.S. Army Reserve (USAR) on 31 August 1987 under the Delayed Entry Program and he enlisted in the Regular Army on 19 November 1987 for a period of 2 years, which established his expiration term of service (ETS) date as 18 November 1989.  

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) indicates he enlisted at the 46th Adjutant General Battalion (Reception Station) at Fort Knox on 19 November 1987.  He was reassigned to Fort Benning, GA for one station unit training on 30 November 1987.  

4.  Orders published, on 2 August 1989, reassigned him to the U.S. Army Transition Point, Fort Polk, LA, effective 17 November 1989, for transition processing.  His date of release from active duty is listed as 17 November 1989.  On the following date, he was transferred to the USAR Control Group (Annual Training). 

5.  His DD Form 214 indicates he entered active duty on 19 November 1987 and was released from active duty on 17 November 1989 under the provisions of Army Regulation 635-200 (Personnel Separations) at his ETS.  On the following day, he was transferred to the U.S. Army Reserve Control Group (Annual Training).  His discharge document also indicates he completed 1 year, 11 months, and 29 days of active military service.  

6.  A review of the 1989 calendar shows 18 November 1989 was a Saturday.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It states Soldiers will be separated on their scheduled transition date, except those who elect to separate on the last workday before a weekend or holiday.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 2-2 of Army Regulation 635-200 states that a Soldier enlisted or ordered to active duty normally will be discharged or released from active duty on the date he/she completes the period for which enlisted or ordered to active duty.  Paragraph 2-2d states that some Soldiers’ 


terms of service expire or they otherwise become eligible for discharge or release from active duty on a Saturday, Sunday, or legal holiday.  These Soldiers may consent to be discharged or released to or transferred to the U.S. Army Reserve on the last working day before their normal date of discharge or release.  Release from active duty or discharge will be date as of the release or discharge.

9.  Department of Veterans Affairs booklet, ”Federal Benefits for Veterans and Dependents,” provides 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 for certain benefits.

DISCUSSION AND CONCLUSIONS:

1.  Paragraph 2-2d of Army Regulation 635-200 recognizes the fact that some Soldiers’ terms of service may expire on Saturday, Sunday, or a Holiday.  This paragraph provides that such Soldiers may consent to be separated on the last working day before their normal date of discharge, release from active duty, or transfer to the Army Reserve.

2.  Although the applicable regulations provide that a Soldier may consent to be separated on the last working day before ETS, those provisions are provided as a convenience to both the individual Soldier and the Department of the Army.  The provision is not intended in any way to deny the Soldier any benefit that the Soldier otherwise would be able to attain had the Soldier not consented to be separated on the last working day prior to the scheduled separation date.

3.  The applicant separated on the Friday before his normal ETS, a Saturday.  As a result of this early separation, through no fault of his own, he is being unduly disadvantaged in that he is being denied VA benefits that he may be entitled to receive, by virtue of his DD Form 214 not showing 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 early at the convenience of the government.

4.  Therefore, it would be in the interest of justice to correct his records to add  in block 18 (Remarks), “For the purpose of obtaining VA benefits only, the individual was separated at the convenience of the government and has fulfilled his first full term of active service.”



BOARD VOTE:

___X ___  ___X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 by  adding to block 18 the entry "For the purpose of obtaining VA benefits only, the individual was separated at the convenience of the government and has fulfilled his first full term 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)                                         AR20110023448



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ABCMR Record of Proceedings (cont)                                         AR20110023448



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