PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           15 August 2002
	DOCKET NUMBER:   AR2002072610

	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. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		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 reconsideration of his request to upgrade his undesirable discharge to a general discharge under honorable conditions.

3.  The applicant states that he needs the upgraded discharge to access Department of Veterans Affairs (VA) benefits.  He provides his Report of Transfer or Discharge, DD Form 214, from his first enlistment and two letters from the VA as supporting evidence.  The letter dated 26 September 2000 indicates that, because the applicant immediately reenlisted in the Army, the VA will not recognize his DD Form 214 showing his honorable service and Purple Heart.

4.  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 18 August 1993 (docket number AC93-08754).

5.  The DD Form 214 for the period ending 16 August 1972 in the applicant’s military personnel records is annotated “void.”  It cannot be determined why it is so annotated.  The Army Discharge Review Board had denied his request for an upgraded discharge on 6 February 1980 (not 1988).

6.  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 or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the service.

7.  Commander, U. S. Total Army Personnel Command (PERSCOM) message 150800Z February 1995 clarified an earlier message concerning a member’s initial term of service.  It stated that, normally, a member should not be considered to have completed the first full term of active service if separation occurs prior to the end of the initial contracted period of service.  However, if a member reenlists prior to the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment and should be considered to have been completed upon execution of a reenlistment contract.  If a soldier has reenlisted, he or she is considered to have completed the first full term of enlistment.

CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.  

3.  However, the applicant has expressed a concern that the VA does not recognize that he satisfactorily completed his initial term of service.  It appears that his honorable discharge of 28 April 1970 should be considered as having been issued as a complete and unconditional separation.  Under current standards, if a member reenlists prior to the completion of that period of service the first term of service is effectively redefined by virtue of the reenlistment and should be considered to have been completed upon execution of a reenlistment contract.  If a soldier has reenlisted, he or she is considered to have completed the first full term of enlistment.

4.  The circumstances of the applicant’s honorable discharge of 28 April 1970 appear to have worked an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.  However, the applicant should understand that the Department of Defense has no jurisdiction over the VA.  The VA, in accordance with its own policies and regulations, may or may not grant entitlement to VA benefits based upon the correction recommended below.

5.  In view of the foregoing, the applicant’s records should be corrected 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          28 April 1970.

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

BOARD VOTE:  

__JNS __  __INW __  __JAM __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

					        ___       John N. Slone      ___
		        CHAIRPERSON

INDEX

CASE ID	AR2002072610	
SUFFIX		
RECON		
DATE BOARDED	2002/08/15	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/08/16	
DISCHARGE AUTHORITY	AR 635-200 ch 10 	
DISCHARGE REASON	A70.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.