IN THE CASE OF:	  

		BOARD DATE:	    29 April 2010

		DOCKET NUMBER:  AR20090017424 


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 item 12a (Date Entered Active Duty This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states:

* his time in service needs to be corrected
* item 18 (Remarks) of his DD Form 214 authorizes the time he spent in the Delayed Entry Program (DEP) as time counted towards his time in service for Federal benefits
* his time in service should then reflect from 13 October 1993 to 26 July 1995

3.  The applicant provides a copy of his DD Form 214 in support of his application.

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's enlistment contract shows he enlisted in the U.S. Army Reserve (USAR) in the DEP on 23 October 1993 for a period of 8 years.  He was discharged from the DEP on 13 June 1994 and enlisted in the Regular Army on 14 June 1994 for a period of 5 years.  On 26 July 1995, he was discharged under honorable conditions (a general discharge).  On 11 April 2007, the Army Discharge Review Board upgraded his general discharge to honorable.

3.  Item 12a of the applicant's DD Form 214 shows he entered active duty on 14 June 1994.  Item 18 of the applicant's DD Form 214 shows the entry "PERIOD OF DELAYED ENTRY PROGRAM:  19931023-19940613."

4.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  The regulation states the beginning date of the continuous period of active duty for issuance of this DD Form 214 for which a DD Form 214 was not previously issued will be entered in item 12a of the DD Form 214.  It also states that if DEP time is included in item 6 (Reserve Obligation Termination Date), enter "ITEM 6, PERIOD OF DEP (inclusive periods of DEP time)" in item 18.

5.  Army Regulation 140-1 (Army Reserve Mission, Organization, and Training) provides policy guidance on the mission, organization, and training of the USAR.  It states the USAR Control Group (Delayed Entry) consists of members enlisted under Army Regulation 601-210 (Active and Reserve Components Enlistment Program).  They are in a nonpay status and will not take part in Reserve training.  While assigned to the group, members are exempt from involuntary order to active duty except during a period of mobilization.

6.  The DEP is defined as a program where Soldiers may enlist and who are assigned to the USAR Control Group (Delayed Entry) until they enlist in the Regular Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his time in the DEP should be counted as active duty service for Federal benefits.  However, Soldiers in the DEP are in a nonpay status, are not on active duty, and are even exempt from involuntary order to active duty except during a period of mobilization.

2.  Records show the applicant was in the DEP from 23 October 1993 through 13 June 1994 which is properly shown in item 18 on his DD Form 214.

3.  The applicant entered active duty on 14 June 1994 which is properly shown in item 12a on his DD Form 214.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20090017424



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ABCMR Record of Proceedings (cont)                                         AR20090017424



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