IN THE CASE OF:	  

		BOARD DATE:  3 January 2013

		DOCKET NUMBER:  AR20120010544 


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 records to show the period of his honorable service on a separate DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that he had a period of eight months that was not good service.  The Department of Veterans Affairs (VA) has determined the character of his service from 30 September 1985 through 26 January 1996 was honorable. This correction of his military service records will aid in his application to the VA for determination of his eligibility for healthcare benefits.

3.  The applicant provides a copy of his VA Form 10-7131 (Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action).

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.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant enlisted in the U.S. Army Reserve (USAR) on 10 September 1985 for the Delayed Entry Program.  He was discharged on
29 September 1985 and enlisted in the Regular Army (RA) on 30 September 1985 for a period of 3 years.

3.  A DD Form 4 shows the applicant reenlisted in the RA on 26 February 1988 for a period of 4 years.  On 24 April 1990, he extended his 4-year reenlistment in the RA to a period of 5 years and 8 months.

4.  A DD Form 4 shows the applicant reenlisted in the RA on 20 October 1994 for a period of 3 years.

5.  On 30 September 1996, court-martial charges were preferred against the applicant for, on 26 May 1996, committing an indecent assault upon a woman, not his wife, with intent to gratify his sexual desire, in violation of the Uniform Code of Military Justice, Article 134.

6.  The applicant consulted with legal counsel and he voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge stated that by submitting his request for discharge, he acknowledged that he understood the elements of the offense charged and that he was guilty of the charge against him or of a lesser offense which also authorized the imposition of a bad conduct or dishonorable discharge.

7.  The separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge.

8.  The applicant's DD Form 214 shows he entered active duty on 30 September 1985 and he was discharged on 31 October 1996 in accordance with Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.

	a.  He had completed 11 years, 1 month, and 1 day of net active service this period.

	b.  Item 18 (Remarks) shows, in part, "Block 6, Period of Delayed Entry Program:  19850910-19850930 [sic]."  It does not show the period of his continuous honorable active service.
9.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

10.  In support of his request the applicant provides a copy of a VA Form 10-7131, dated 3 April 2012, and Verified Service Data that shows the VA has categorized his service in the U.S. Army, as follows:

* Honorable:  30 September 1985 through 26 January 1996
* Other Than Honorable:  30 September 1985 through 31 October 1996

11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 shows that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   b.  Chapter 3, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty and is prepared for Soldiers upon release from active duty, discharge, retirement, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the military personnel record.

	b.  Paragraph 2-1 (Preparing the DD Form 214) states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.

   c.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It shows for item 18, use this block for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks.

    	(1)  For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates).

    	(2)  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be issued a DD Form 214 to show he had honorable service from 30 September 1985 through 26 January 1996.

2.  Records show the applicant had three separate periods of enlistment in the RA, as follows:

* enlisted on 30 September 1985; discharged on 25 February 1988
* reenlisted on 26 February 1988; discharged on 19 October 1994
* reenlisted on 20 October 1994; discharged under other than honorable conditions on 31 October 1996

3.  He was issued a DD Form 214 for the period of service from 30 September 1985 through 31 October 1996.

4.  The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.  Thus, the applicant's DD Form 214 correctly shows his period of continuous active service in the RA and he is not entitled to separate DD Forms 214 for his previous periods of continuous active service.

5.  The evidence of record shows that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "honorable," an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment, followed by the specific periods of reenlistments.

   a.  Item 18 of the applicant's DD Form 214 does not contain such an entry.

   b.  Therefore, it would be appropriate to correct his DD Form 214 to show his continuous period of honorable active service.

   c.  In addition, item 18 shows the applicant's period of service in the Delayed Entry Program as 10 September 1985 through 30 (vice 29) September 1985.  Therefore, it would also be appropriate to correct this entry.

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:

   a.  deleting from item 18 of his DD Form 214 the entry, "DELAYED ENTRY PROGRAM:  19850910-19850930"; and
 
   b.  adding to item 18 of his DD Form 214 the entries:

* "DELAYED ENTRY PROGRAM:  19850910-19850929"
* "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19850930 UNTIL 19941019 (19850930-19880225,19880226-19941019)"

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 honorable service from
30 September 1985 through 26 January 1996 and a separate DD Form 214 for his continuous period of honorable service in the RA.




      _______ _  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)                                         AR20120010544



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ABCMR Record of Proceedings (cont)                                         AR20120010544



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