BOARD DATE:	27 September 2012

		DOCKET NUMBER:  AR20120006879


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 two previous periods of honorable service.

2.  The applicant states:

* his DD Form 214 only shows his last discharge from the Army, it does not show his two periods of honorable service from May 1979 through October 1985
* his two periods of honorable service override his discharge under other than honorable conditions and, when properly documented, enable him to receive veterans' benefits

3.  The applicant provides Department of Veterans Affairs (VA) Form 10-10EZ (Application for Health Benefits), dated 23 March 2012.

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.  His record shows he enlisted in the Regular Army on 23 May 1979.  He completed training and was awarded military occupational specialty 31M (Multichannel Communications Equipment Operator).  The highest rank/grade he attained during his period of military service was sergeant/E-5.

3.  On 1 December 1981, he reenlisted in the Regular Army.

4.  Permanent Orders 032-101 issued by Headquarters, 7th Infantry Division and Fort Ord, Fort Ord, CA, dated 16 February 1983, awarded him the Army Good Conduct Medal (1st Award) for the period 23 May 1979 through 22 May 1982.

5.  On 31 August 1984, he again reenlisted in the Regular Army.

6.  On 8 November 1984, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on or about 20 September 1984.  On 13 December 1984, he elected to appeal the NJP.  On 8 January 1985, his appeal was denied.

7.  On 12 April 1985, his immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) wherein he recommended that the applicant be barred from reenlistment due to unsuitable behavior, both on and off duty; specifically, his use of marijuana and his inability to maintain control of his financial matters.

8.  On 16 May 1985, his bar to reenlistment was approved.

9.  On 12 June 1985, court-martial charges were preferred against him for:

* nine specifications of charge 1, absenting himself from his appointed place of duty on numerous occasions between 2 January 1985 and 31 May 1985
* one specification of charge 2, wrongful use of marijuana on or about 7 January 1985

10.  On 18 June 1985, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and the procedures and rights available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

11.  In his request for discharge, he indicated he understood that if his request for discharge were accepted, he might be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He indicated he had been advised of the possible effect of such a discharge and understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

12.  On 25 June 1985, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 15 July 1985, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His DD Form 214 shows in:

* item 12c (Net Active Service This Period) – he was credited with completion of 6 years, 1 month, and 23 days of net active service
* item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – he was awarded the Army Good Conduct Medal during this period of service
* item 18 (Remarks) – the entry "IMMEDIATE REENLISTMENTS THIS PERIOD:  811201-840830 & 840831"

14.  Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes the standardized policy for preparing and distributing the DD Form 214.  It states the DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

	a.  Paragraph 1-4b(5) of the regulation in effect at the time stated that a DD Form 214 would not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army.

	b.  Paragraph 2-4h(18) of the regulation currently in effect states that item 18 documents the remarks that are pertinent to the proper accounting of the separating Soldier's period of service.  Subparagraph (c) states that for enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the appropriate dates.  For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except "honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)."  Then, enter the specific periods of reenlistments as prescribed above.

15.  Since 1 October 1979, military personnel discharged for the purpose of immediate reenlistment are no longer issued a separate DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he enlisted in the Regular Army on 23 May 1979 and reenlisted on 1 December 1981 and 31 August 1984 without a break in service.  Consequently, he is not authorized separate DD Forms 214 for his initial period of enlistment and subsequent period of reenlistment because DD Forms 214 are not issued when there is no break in service.

2.  Item 18 of his DD Form 214 contains the entry "IMMEDIATE REENLISTMENTS THIS PERIOD:  811201-840830 & 840831."  The evidence of record reveals he reenlisted within the prescribed regulatory time frames and was awarded the Army Good Conduct Medal (1st Award) for his initial term of service; therefore, his DD Form 214 should be corrected as a matter of equity to show he completed his first full term of service and item 18 should be corrected to show his period of continuous honorable active service.

3.  The evidence of record shows he was discharged for the good of the service in lieu of trial by court-martial effective 15 July 1985 which rendered his term of enlistment from 31 August 1984 through his discharge date as less than honorable.  Therefore, he is not entitled to the portion of the requested relief pertaining to correcting his DD Form 214 to show honorable service through October 1985.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x______  __x______  _x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 amending item 18 of his DD Form 214 to add the entries:

* "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE"
* "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19790523 UNTIL 19840830"

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 his DD Form 214 to show honorable service through October 1985.



      __________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)                                         AR20100015735



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ABCMR Record of Proceedings (cont)                                         AR20120006879



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