IN THE CASE OF:  	  

		BOARD DATE:  7 October 2014	  

		DOCKET NUMBER:  AR20140003304 


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 that he be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he served a period of continuous honorable service from 19780621 – 19851226.

2.  The applicant states that he should have been issued a separate                 DD Form 214 for the period 19780621 – 19851226; instead, that period of service was included on his DD Form 214 that shows he was discharged under other than honorable conditions.  This affects his ability to receive veteran benefits.

3.  The applicant provides a copy of his Honorable Discharge Certificate.

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 21 June 1978 for a period of    3 years and training as a unit supply specialist.  He completed his training and was transferred to Germany on 29 December 1978.  On 26 January 1981, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 27 January 1981 for a period of 3 years and assignment to Fort Bragg, North Carolina.

3.  He completed his tour in Germany on 16 June 1981 and was transferred to Fort Bragg, North Carolina, where he remained until he was transferred back to Germany on 22 March 1983.  On 26 December 1985, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on            27 December 1985 for a period of 3 years. He departed Germany on 13 March 1987 and was transferred to Fort Bliss, Texas.  He was promoted to the rank/grade of staff sergeant/E-6 on 6 August 1987.

4.  On 21 August 1989, nonjudicial punishment was imposed against him for driving while drunk.

5.  On 25 October 1989, nonjudicial punishment was imposed against him for shoplifting at the Post Exchange.  His punishment consisted of a reduction to the rank/grade of sergeant/E-5.

6.  On 22 March 1990, charges were preferred against him for wrongfully appropriating three handguns belonging to a general officer and one handgun that was the property of the U.S. Government.

7.  The facts and circumstances surrounding his administrative discharge are not present in the available records; however, they do contain a DD Form 214 that shows he was discharged under other than honorable conditions on 15 May 1990, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His DD Form 214 issued at the time of his discharge shows he served 11 years, 10 months and 25 days of active service during the period 19780621- 19900515.  Item 18 (Remarks) of his DD Form 214 contains the entry. “IMMEDIATE REENLISTMENTS THIS PERIOD:  780621- 810126 and 810127 - 851226.”

8.  On 16 July 2007, he applied to the Board for an upgrade of his discharge, contending his discharge should be upgraded so that he can obtain benefits from the Department of Veterans Affairs (VA).  The Board denied his request. 



9.  Army Regulation 635-5 (Separation Documents), in effect at the time, served as the authority for the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared to reflect active service that is performed during the period covered by the DD Form 214.  Effective 1 October 1979, this regulation was changed to eliminate the issuance of a DD Form 214 for immediate reenlistments.  A break in service in excess of 24 hours requires that a DD Form 214 be issued from that point and continues presently.  Prior periods of service reflected on previously-issued DD Forms 214 will be reflected in the proper blocks designated for prior active and inactive service.

10.  Title 38, United States Code permits the VA to grant veteran benefits to former service members, in accordance with its policies and regulations.  One of the prime criteria is that the service member’s period of service must be considered not under other than honorable conditions, or dishonorable.  Also, the former service member must have completed his or her service obligations, or have a complete and unconditional discharge.  The military departments are not authorized to establish entitlement to veteran benefits authorized for programs operated by the VA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been issued a DD Form 214 when he reenlisted in 1985 has been noted; however, it was found to lack merit.

2.  The regulation governing the preparation and issuance of the DD Form 214, in effect at the time, provided that DD Forms 214 would not be issued for immediate reenlistments.

3.  Accordingly, his DD Form 214 was properly prepared at the time of his discharge on 15 May 1990 and there is no basis to issue him a DD Form 214 to reflect his service during his prior enlistment.

4.  Item 18 of his DD Form 214 contains the entry. “IMMEDIATE REENLISTMENTS THIS PERIOD:  780621- 810126 and 810127 - 851226.”  This shows that his first two enlistment periods ended honorably.

5.  Accordingly, there is no basis to grant his request to be issued a DD Form 214 dated 26 December 1985 or to grant him an unconditional discharge.



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)                                         AR20140003304





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ABCMR Record of Proceedings (cont)                                         AR20140003304



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