PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                              
	DOCKET NUMBER:   AC9810471

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	M .		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests he receive a new DD Form 214 to show his first four years of honorable service and a second DD Form 214 to show his under other than honorable conditions (UOTHC) discharge.  He states this would make him eligible for VA benefits.

3.  The applicant’s military records show he enlisted in the Regular Army on      22 February 1989 for 4 years.  He was honorably discharged on 21 July 1992 for the purpose of immediately reenlisting on 22 July 1992.

4.  There is no evidence in the records to show the applicant had any disciplinary problems prior to 1993.

5.  On 29 March 1993, the applicant departed absent without leave (AWOL) and returned to military control on 29 April 1993.

6.  The court-martial charge sheet and the Chapter 10 packet are not available.

7.  On 14 July 1993, he was discharged, with a discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of court-martial.  He had completed 4 years, 4 months and 23 days of creditable active service and had    32 days of lost time.  His awards and decorations included the Army Achievement Medal (1st oak leaf cluster), the Army Good Conduct Medal and the Southwest Asia Service Medal.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. 

9.  On 1 July 1979, the requirement to prepare a DD 214 for enlisted members who are discharged for the purpose of immediate reenlistment was ended.

10.  The VA, in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA determines that the early discharge amounted to a complete and unconditional separation from the service.

CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  Effective 1 July 1979, a DD Form 214 was no longer prepared when a soldier was discharged for the purpose of immediately reenlisting.  However, while it would not be appropriate to change the records to show that the applicant was discharged honorably or under honorable conditions from the reenlistment commencing on 22 July 1992, it appears that his honorable discharge of 21 July 1992 should be considered as having been issued as a complete and unconditional separation.

3.  The circumstances of the applicant’s honorable discharge on 21 July 1992 have worked an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.

4.  In consideration of the foregoing findings and conclusions, it would be unjust to consider his honorable discharge of 21 July 1992 as other than a complete and unconditional separation from the military service.

5.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 21 July 1992.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                                                                                                           
						    CHAIRPERSON