BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140001252 


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, a complete and unconditional discharge. 

2.  The applicant states the first 5 years of his service in the Army should be considered as good time.  Anything after his nonjudicial punishment (NJP) equals bad time.

3.  The applicant provides no additional evidence.

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) for 3 years on 24 September 1986.  After completing 2 years, 5 months, and 11 days of net active service, he reenlisted in the RA for 4 years on 7 March 1989.

3.  The applicant's record shows he received a letter of reprimand on 8 May 1991, for having sexual intercourse with a woman not his wife.  He also had charges preferred against him on 16 July 1992, for conspiracy to possess and sell stolen property, failure to turn over to proper authority abandoned and captured property, dealing in the sale of certain abandoned and captured property, and wrongfully subscribing under lawful oath a false statement.  All charges pertained to an AK-47 rifle.  However, there is no evidence in the applicant's record that shows he ever accepted NJP.

4.  On 13 January 1993, the applicant 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.  He completed 6 years, 3 months, and 20 days of net active service this period.  His service was characterized as under other than honorable conditions.

5.  Item 18 (Remarks) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) contains the statement "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 860924 TO 890306//IMMEDIATE REENLISTMENTS THIS PERIOD:  860924-890306//"

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The current version of the regulation instructing that Item 18 state, in pertinent part, whether a Soldier has or has not completed his first full term of service is mandatory.  It further indicates that routinely a Soldier should not be considered to have completed the first full term of active 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.  For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, the entry "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates) will be added to Item 18.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be granted a complete and unconditional discharge for his initial period of active duty service has been carefully considered and partial relief is warranted.  Unconditional service determinations under Public Law Number 95-126 and entitlement to veteran's benefits based on these determinations are within the purview of the Department of Veterans Affairs (VA) and will be made by that agency.  However, entries are required on the DD Form 214 to assist the VA and State agencies in making these benefit entitlement determinations and as a result it would be appropriate to make these administrative corrections. 

2.  By regulation, an entry in Item 18 stipulating if a member has or has not completed the first full term of service is mandatory and if a Soldier reenlists before the completion of his initial contracted period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.  The governing regulation also provides for immediate reenlistment entries in Item 18 of the DD Form 214 for Soldiers who have previously reenlisted without being issued a DD Form 214, and who are separated with any characterization of service except "Honorable."  This entry will be the statement "Continuous Honorable Active Service From" (first day of service which DD Form 214 was not issued) until (date before commencement of current enlistment), and then the specific periods of reenlistments will be entered.

3.  Based on the regulatory guidance, the applicant's initial 3-year enlistment in the RA on 24 September 1986 would be redefined based on his 7 March 1989 reenlistment and he should have been credited with completing his first full term of service.  Therefore, the entry "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" should be added to Item 18 of the applicant's DD Form 214, and the immediate reenlistment entry already contained in Item 18 should be modified to read "IMMEDIATE REENLISTMENTS THIS PERIOD "890307-930113."

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 amending Item 18 of his DD Form 214 as follows:

	a.  Add the entry “SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" and

	b.  Modify the existing immediate reenlistment entry to show "IMMEDIATE REENLISTMENTS THIS PERIOD "890307-930113."

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 granting a complete and unconditional discharge determination.



      __________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)                                         AR20140001252



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ABCMR Record of Proceedings (cont)                                         AR20140001252



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