IN THE CASE OF:	  

		BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120021360 


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 records by issuing him a DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect his honorable service during his first enlistment and correcting his last DD Form 214 to reflect his service during his second period of service.

2.  The applicant states his DD Form 214 does not accurately reflect his service and he believes the record to be in error because it does not reflect his honorable service during his first enlistment.  He states two separate DD Forms 214 would clearly show his service accurately.  He further states his DD Form 214 is preventing him from receiving benefits from the Department of Veterans Affairs (VA) that he deserves.

3.  The applicant provides:

* DD Form 214
* Honorable Discharge Certificate, dated 27 June 1980
* Orders 166-38, issued by the 259th Personnel Service Company, dated
3 July 1980 (reenlistment orders)
* extracts from his initial enlistment agreement
* Orders 109-44, issued by Headquarters, 24th Infantry Division, Fort Stewart, GA, dated 2 June 1981 (separation orders)
* partial copy of his discharge proceedings


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 19 July 1977 for a period of
3 years, training as an infantryman, and assignment to Europe.  He completed his basic training at Fort Jackson, SC and his advanced individual training at Fort Benning, GA and he was transferred to an infantry company in Bamberg, Germany on 3 January 1978.

3.  On 28 June 1980, he reenlisted for a period of 4 years and assignment to Fort Stewart.  He departed Germany on 13 July 1980 and he was transferred to an infantry company at Fort Stewart.

4.  On 11 March 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

5.  On 7 April 1981, he accepted NJP under Article 15, UCMJ for missing movement with his unit and disobeying a lawful order from a superior noncommissioned officer (NCO).

6.  The completed facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the VA Regional Office in Atlanta, GA in 1982.  However, the documents provided by the applicant show that on 27 May 1981 the separation authority (a brigadier general) approved his recommendation for discharge under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), paragraph 14-33b(1),(2), and (3) for misconduct, frequent incidents of a discreditable nature with military authorities, an established pattern of shirking, and an established pattern showing dishonorable failure to pay just debts.  He directed the applicant be reduced to the lowest enlisted grade and be furnished an Under Other Than Honorable Conditions Discharge Certificate.
7.  On 8 June 1981, he was discharged accordingly with an under other than honorable conditions discharge.  He completed 3 years, 10 months, and 19 days of creditable active service.  The DD Form 214 he was issued at the time shows that he served from 19 July 1977 through 8 June 1981.  Block 18 (Remarks) of his DD Form 214 shows his two contracted periods of service.

8.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides that the DD Form 214 will reflect active service that is performed during the period covered by the DD Form 214 and will reflect prior active service as well.  Effective 1 October 1979 the regulation was changed to eliminate the issuance of a DD Form 214 for immediate reenlistments.  It stated for block 18, enter a list of enlistment periods for which a DD Form 214 was not issued due to immediate reenlistment. Example:  Immediate reenlistments this period: 761210–791001;
791002–821001.  It further states a break in service in excess of 24 hours required that a DD Form 214 be issued from that point.

9.  Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), provides that, "Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military …service when the following conditions are met:…(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be issued a DD Form 214 to cover his first enlistment that is separate from his second period of service has been noted and found to lack merit.

2.  The regulation in effect at the time of the applicant's discharge and which continues to this day provides that a DD Form 214 will not be issued in cases of immediate reenlistment when there is no break in service in excess of 24 hours.

3.  Accordingly, the applicant's DD Form was properly prepared to reflect his service as it existed at the time of his discharge.  There is no error or injustice in his case as he was treated as all Soldiers under the same circumstances.


4.  While the Board does not have any authority over the VA which administers veteran's benefits and operates under its own laws and regulations, that agency has the authority to make a determination as to whether a period of service is determined to be a complete and unconditional honorable period of service for purposes of benefits.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________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)                                         AR20120021360



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ABCMR Record of Proceedings (cont)                                         AR20120021360



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