IN THE CASE OF: BOARD DATE: 6 September 2016 DOCKET NUMBER: AR20150012509 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 6 September 2016 DOCKET NUMBER: AR20150012509 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 6 September 2016 DOCKET NUMBER: AR20150012509 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 his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period 5 October 1992 through 3 October 1994, to show he completed 2 years of net active service. 2. The applicant states that he was discharged 2 days short of completing 2 years of active duty. He states he should have been informed of this because he could have remained on active duty the additional day(s) to complete 2 full years of active duty. He also states he thought that his active duty for training (ADT), during the period 7 January 1992 through 4 May 1992, was to be added to his total active duty service. He adds this issue is affecting his eligibility for veterans' benefits. 3. The applicant provides copies of his two DD Forms 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 U.S. Army Reserve (USAR) on 23 August 1991 for a period of 8 years. 3. A DD Form 214 shows the applicant entered ADT on 7 January 1992, was released from ADT on 4 May 1992, and was transferred to the 355th General Support Company, New Orleans, LA. Item 12 (Record of Service) shows in: * block c (Net Active Service This Period): 0 years, 3 months, 28 days * block d (Total Prior Active Service): 0 years, 0 months, 0 days * block e (Total Prior Inactive Service): 0 years, 4 months, 14 days 4. On 5 October 1992, the applicant enlisted and entered active duty in the Regular Army (RA). 5. On 23 September 1993, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from his superior noncommissioned officer. 6. During the period 15 October 1992 to 31 May 1994, the applicant received performance-oriented counseling (on at least seven occasions) pertaining to the standards and responsibilities of a Soldier. 7. A DA Form 4430-R (Report of Result of Trial) shows the applicant was tried by a Summary Court-Martial on 8 June 1994. a. He was found guilty of: * failing to go to his place of duty * consuming alcohol while under 21 years of age * making a false official statement * stealing an Armed Forces Identification Card * wrongfully altering an Armed Forces Identification Card b. He was sentenced to be reduced to the grade of E-1 and forfeiture of $555 pay per month for 1 month. c. On 20 June 1994, the Summary Court-Martial Convening Authority approved the sentence and ordered it executed. 8. On 14 September 1994, the applicant's commander notified him that he was recommending him for separation prior to expiration term of service under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12c, based on commission of a serious offense. a. The applicant was advised of his rights and the separation procedures involved. The commander also informed him that he was recommending he receive an under other than honorable conditions discharge. b. The applicant acknowledged receipt of the commander's notification and that he had been advised of his right to consult with counsel. c. Following notification of the separation action, the applicant consulted with legal counsel and he was advised of the rights available to him. He elected not to submit any statements in his own behalf. 9. The battalion commander recommended approval of the applicant's discharge with a general, under honorable conditions characterization of service. 10. The separation authority approved the recommendation for discharge of the applicant and directed discharge UP AR 635-200, paragraph 14-12c, with issue of a General Discharge Certificate. 11. The applicant's DD Form 214 shows he entered active duty this period on 5 October 1992 and he was discharged under honorable conditions (general) on 3 October 1994 UP AR 635-200, paragraph 14-12c, for misconduct. a. Item 12 shows in: * block c: 1 year, 11 months, 29 days * block d: 0 years, 3 months, 28 days * block e: 0 years, 9 months, 15 days b. Item 21 (Signature of Member Being Separated), the applicant placed his signature on the form. 12. A review of the applicant's military personnel records failed to reveal evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations. REFERENCES: AR 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed 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 established standardized policy for preparing and distributing the DD Form 214. a. Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214. b. It shows for item 12, use extreme care in completing this block since post-service benefits, final pay, retirement credit, etc. are based upon the information contained herein. It also shows for: * block a (Date Entered Active Duty This Period), enter the beginning date of the enlistment period or tour of active duty * block b (Separation Date This Period), enter the separation date this period * block c, enter the amount of service this period (subtract 12a from 12b) * block d, enter the total amount of prior active military service less lost time, if any * block e, enter the total amount of prior inactive service, less lost time DISCUSSION: 1. The applicant contends his 3 October 1994 DD Form 214 should be corrected to show he completed 2 years of net active service because he was not informed of the 1-day shortfall nor was he afforded the opportunity to complete 2 full years of active duty service during the period of service under review. 2. Records show the applicant entered active duty this period on 5 October 1992 and he was discharged on 3 October 1994. a. A calculation of the applicant's creditable military service during the period of service under review shows the following: 1994 10 03 date discharged from active duty - 1992 10 05 date enlisted/entered active duty this period = 01 11 28 + 1 day inclusive = 01 11 29 net active service this period (item 12, block c) b. A calculation of the applicant's total active service shows the following: 00 03 28 ADT (item 12, block d) - 01 11 29 net active service, period under review (item 12, block c) = 01 14 57 total active service, which converts to = 02 03 27 2 years, 3 months, 27 days c. Item 12, block e, shows his total inactive service (9 months and 15 days). 3. The evidence of record shows the applicant's commander initiated separation action against him based on his misconduct. The applicant consulted with legal counsel and he was advised of the rights, including the option of submitting statements in his own behalf. However, he elected not to submit any statements in his own behalf when he had the opportunity to raise any issues of concern to his chain of command (including the issue he now raises). Accordingly, the applicant was discharged for misconduct prior to his expiration term of service. 4. The evidence of record shows the applicant's final DD Form 214 shows the correct amounts of his RA active duty service, prior ADT service, and his USAR inactive service. 5. The granting of veterans' benefits is not within the purview of the ABCMR. Any questions the applicant may have regarding his eligibility for veteran's benefits based on his creditable service should be addressed to the Department of Veterans Affairs or other appropriate government agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012509 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012509 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2