BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130006622 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect he served 24 months of active duty. 

2.  The applicant states:

* he enlisted for a period of 2 years and intended to serve for 2 years
* the Army gave him an honorable discharge and processed him out of the service 13 days short of the 2-year period
* he did not request early separation
* he was unaware the early separation would affect his eligibility for benefits or he would have requested a later separation 

3.  The applicant provides:

* letter, dated 21 December 2012, from the Department of Veterans Affairs (VA) Healthcare System in San Diego, CA
* 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 enlisted in the Regular Army (RA) on 2 February 1982 for a period of 2 years.  Orders 248-13 issued by the U.S. Army Regional Personnel Center, Army Post Office New York 09116 (Germany), dated 17 November 1983, reassigned him to the U.S. Army Separation Transition Point, Fort Jackson, SC, for the purpose of separation processing with a reporting date of 30 January 1984 followed by assignment to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining Reserve obligation.  The orders further state that his date of relief from active duty unless changed or rescinded was 1 February 1984.  However, a 1st endorsement issued by the U.S. Army Transition Point, Fort Jackson, dated 20 January 1984, changed his effective date of relief from active duty to 20 January 1984.

3.  Records show he was returned to the United States on 19 February 1984 and was released from active duty the following day.

4.  Item 12c (Net Active Service This Period) of his DD Form 214 shows he completed 1 year, 11 months, and 19 days of creditable active service.

5.  There is no evidence that shows he effectively completed 2 years of creditable active service in the Regular Army.

6.  He provides a letter, dated 21 December 2012, from the VA San Diego Healthcare System which states he was ineligible to receive medical benefits because he had not served 24 continuous months of active service.   

7.  Army Regulation 635-10 (Processing Personnel for Separation), paragraph 
3-5 (Time Limits for Completion of Final Transition Processing), provides that overseas returnees will be separated on the first workday after arrival at the Separation Transfer Point, when possible.  All other 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.  The VA booklet, "Federal Benefits for Veterans and Dependents," 2008 edition, provides the basic eligibility requirements for VA Health Care.  It 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.  This minimum duty requirement may not apply to veterans discharged for hardship, early out, or a disability incurred or aggravated in the line of duty.

9.  In the processing of a previous case with the same issue, a staff member contacted officials at the VA Health Eligibility Career Center in Atlanta, GA, in an attempt to ascertain what the appropriate action would be for the Board to direct in cases such as the applicant's that would allow all such veterans to go to any VA field operating agency and receive the benefits to which they would be entitled.  Officials at the VA opined that if a statement to the effect that an individual had been separated at the convenience of the government and that he or she had fulfilled his or her first full term of enlistment was entered in the remarks section of the DD Form 214, it would be acceptable in any VA office and would serve as a waiver of the 24-month requirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant enlisted in the RA for a period of 2 years on 2 February 1982.  While the evidence of record clearly shows he only completed 1 year, 11 months, and 19 days of total active service, which was 11 days short of his 24-month contract, the evidence of record also shows this early separation occurred only for the convenience of the government.

2.  It also appears he was serving overseas at the time he was returned to the United States for separation processing and because his scheduled separation date was supposed to be on 1 February 1984, he should have been discharged on that date.  However, he was returned to the United States on 19 February 1984 and was released from active duty the following day.

3.  As a result of this premature separation and through no fault of his own, he is being unduly disadvantaged in that he is being denied VA benefits that he may otherwise be entitled to.

4.  There is insufficient evidence in which to correct his DD Form 214 to show he completed 2 years of creditable active service.  However, it would be in the interest of justice at this time to correct item 18 (Remarks) of his DD Form 214 to show the entry, "The individual was separated at the convenience of the government and has fulfilled his first full term of active service."

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 entry "The individual was separated at the convenience of the government and has fulfilled his first full term of active service" in item 18 of his DD Form 214.    

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 changing his DD Form 214 to show that he served 24 months of active duty.




      _______ _ 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)                                         AR20130006622





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ABCMR Record of Proceedings (cont)                                         AR20130006622



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