IN THE CASE OF:	  

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140000248 


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 item 15 (Date Entered Active Duty This Period) of his DD Form 214 (Report of Separation from Active Duty) to show he entered active duty on "16 March 1976" instead of "20 July 1976."

2.  The applicant states by reading "page 4c #31" of his enlistment contract, his effective date enlisting into the U.S. Army Reserve (USAR) was 16 March 1976, and this date should be continued as his effective date for enlisting into the Regular Army.  He understands that this date does not count for pay purposes, but for the fulfillment of his obligation or commitment to the U.S. Army.

3.  The applicant provides:

* pages 1, 3 and 4 of his initial enlistment contract
* two DD Forms 214
* a Department of Veterans Affairs (VA) rating decision
* two letters written to the VA
* a blank DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States) 

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 contains a DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States) which shows the following information:

* Section II (Agreements) –

* he enlisted in the USAR on 16 March 1976 for a period of 6 years
* the additional details of his obligations under this agreement were provided in Annex A (DA Form 3286-40 (Statements for Enlistment – Delayed Entry Program (DEP))

* Section VII (Change of Status - For participant in the DEP) 

* Item 31 ("In connection with my enlistment (date) 16 March 1976 in the U.S. Army Reserve, I request to be discharged there from and enlisted in the Regular component of the U.S. Army effective this date for a period of 3 years") - he signed this section of the contract on 20 July 1976
* accordingly, he was discharged from the DEP on 19 July 1976 and enlisted in the Regular Army and entered active duty on 20 July 1976

3.  Annex A of his enlistment contract also shows his date of enlistment in the Regular Army as 20 July 1976.

4.  His records contain a DA Form 2-1 (Personnel Qualification Record – Part II), which shows in Section VII (Current and Previous Assignments):

* he was in the USAR DEP from 16 March 1976 to "20" July 1976 
* he enlisted in the Regular Army on 20 July 1976 and reported to the U.S. Army Reception Station, Fort Bliss, TX, the same day

5.  He provided a DD Form 214 for the period ending 17 January 1979.  Item 15 of this document shows he entered active duty on 20 July 1976 and was discharged for the purpose of immediate reenlistment after completing 
2 years, 5 months, and 28 days of honorable active duty service with 5 months and 26 days of prior inactive service.
6.  His record contains a second DD Form 4 that shows he reenlisted in the Regular Army on 18 January 1979 for a period 4 years. 

7.  He provided a second DD Form 214 which shows he entered active duty on 18 January 1979 and was discharged on 11 July 1980 with a bad conduct characterization of service.

8.  He provided a VA Decision letter, dated 12 October 2004, which shows he was not eligible for any VA benefits due to his bad conduct discharge on           "17 January 1983" as a result of a general court-martial.  The VA concluded that his first offense was committed on 19 April 1979 which was prior to 19 July 1979 (completion of his 3-year active duty commitment).  Therefore, his period of service from 20 July 1976 through 11 July 1980 is considered to be one continuous period of service.  He was barred of all VA benefits because his discharge was considered to be under dishonorable conditions.  

9.  He also provided two letters he wrote to the VA that are both dated December 2013.  These documents show he requested reconsideration of the VA's decision to grant him benefits.  

10.  Army Regulation 635-5 (Separation Documents) in effect at the time, stated to enter the date the service member entered active duty for the period of service covered by the DD Form 214.  At the time DEP service was listed as prior inactive service.

11.  Army Regulation 635-8 (Separation Processing and Documents) currently in effect states to enter in 18 (Remarks) of the DD Form 214 "SOLDIER (HAS) OR (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE."  A Regular Army Soldier should not be considered to have completed the first full term of service if separation occurs before the end of the initial contracted period of service.  However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.  A prior service enlistee is considered to be on a second term of military service, even if that Soldier fails to complete the current term of service, the appropriate entry is "HAS."

DISCUSSION AND CONCLUSIONS:

1.  His request to change the date he entered active duty was carefully considered.  His record shows he enlisted in the USAR DEP on 16 March 1976 

and remained in a DEP status until his release on 19 July 1976.  He enlisted in the Regular Army and entered active duty on 20 July 1976 and his DD Form 214 for the period ending 17 January 1979 correctly shows this.  There is no evidence and he has not provided sufficient evidence that shows he entered active duty on 16 March 1976.  As such, he is not entitled to the requested relief.

2.  In reference to the statement in the letter from the VA in which it was concluded that his period of service from 20 July 1976 to 11 July 1980 was one continuous period of service:  

	a.  The applicant's records show he had one period of honorable active service from 20 July 1976 to 18 January 1979 in which he was discharged and received a DD Form 214 for the purpose of immediate reenlistment in the Regular Army.  This form shows he served a period of 2 years, 5 months, and 
28 days of active service and he received an Honorable Discharge Certificate.  

	b.  He then entered a new contractual obligation on 19 January 1979 for a period of 4 years at the time of his reenlistment and this is shown on the 
DD Form 4 for that period.  This period of service was terminated on 11 July 1980 at the time he received his bad conduct discharge.

3.  While the applicant’s DD Form 214 is properly prepared, he may desire to inform the VA that as far as the Army is concerned he had honorably completed his period of service from 20 July 1976 through 19 January 1979.  However, the Army has no jurisdiction over the VA in this matter.

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)                                         AR20140000248





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ABCMR Record of Proceedings (cont)                                         AR20140000248



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