MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 25 FEBRUARY 2003
         DOCKET NUMBER: AR2002076491


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

Mr. Carl W. S. Chun		Director
Ms. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Lawrence Foster		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

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

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APPLICANT REQUESTS: That his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected by showing that he fulfilled a 2-year enlistment obligation, that his highest education level was the
12^th grade, and by adding a certificate of achievement, a soldier of the month award, as well as a variety of unit training courses. The applicant states that he and a friend enlisted in the Army for three years, under the “Buddy System,” and was told that they would go through basic training together, however, upon arriving at Fort Campbell, Kentucky they were split up. He believes that the Army performed a breach of contract for not putting him and his friend through basic training together. He feels that the reason listed for his separation “unfilled enlistment commitment,” indicates that he was some how at fault for not meeting his military obligation, and was told by his local Veteran’s Administration Office that it could possibly be a hindrance when seeking a civilian job.

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD: The applicant's military records show:

On 7 January 1969 the applicant enlisted in the Regular Army for a period of
3 years, under the “Buddy Basic Training Plan” enlistment option. He successfully completed basic combat training at Fort Campbell, and advanced individual training at Aberdeen Proving Grounds, Aberdeen, Maryland. He served in Vietnam from July 1969 through December 1970.

The applicant’s 30 December 1968, DD Form 398 (Statement of Personal History), Section 9 (Education), completed by the applicant, reflects that he did not graduate from high school.

The applicant’s January 1969, DA Form 20 (Enlisted Qualification Record), authenticated by his signature reflects his civilian education level as 11 years. There is no evidence in the applicant’s available records nor did he provide documentation to substantiate his claim that his highest civilian education level was 12 years.

On 14 October 1970, the applicant requested that a review of his current enlistment obligation be made and that a two year service obligation be substituted in lieu of his current three year obligation. The applicant’s request was based on his belief that the Army had breached their contract, by not allowing him and his friend to stay together during basic training as provided for in his enlistment contract.

A letter from the Office of Personnel Operations, Washington, DC, approved the applicant’s request for separation because of an unfulfilled enlistment commitment and directed his immediate separation, under the provisions of Army Regulation 635-200, paragraph 5-32h(1).

The applicant was honorably discharged on 17 February 1971, under the provisions of the above cited regulation. The reason and authority for his separation was listed as Army Regulation 635-200, SPN (Separation Program Number) 377, “Unfulfilled Enlistment Commitment.” His DD Form 214 indicates he had 2 years, 1 month and 11 days of service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-32 of that regulation, then in effect, states that when it has been determined by the Chief of Personnel Operations that an enlistment commitment was erroneous and/or could not be fulfilled immediate separation was authorized providing the soldier had completed 24 months of active service. The authority for such separation was Army Regulation 635-200 and SPN 377 (Unfulfilled Enlistment Commitment).

Army Regulation 635-5 establishes the standardized policy for preparing and distributing the DD Form 214. In pertinent part, it directs that the regulatory authority authorizing the separation will be entered in item number 11c of the
DD Form 214, followed by the SPN and the descriptive reason for the separation. The applicant’s separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The unfulfilled enlistment commitment was on the part of the Army and not the applicant. He has provided no evidence that the narrative reason for his separation has been a hindrance when seeking employment since his separation approximately 32 years ago. His DD Form 214 accurately reflects the appropriate regulatory authority, SPN, and narrative reason for his separation.

Army Regulation 635-5, in effect at the time, provided in pertinent part, that item 25 (Military Education) of the DD Form 214 would reflect formal in service training courses successfully completed of at least one week duration. Because the training entries were intended to assist the soldier in securing civilian employment, courses which only enhanced military skills were not recorded in this item. As such the applicant's training in the Code of Conduct, as well as other combat training courses, listed on the DA Form 20, that he feels should be entered in item 25, are not authorized for filing on the DD Form 214.

Army Regulation 635-5 also provides that item 24 of the DD Form 214 will reflect decorations, medals, badges, citations and campaign ribbons awarded or

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authorized. As such, Certificates of Achievement, Letters of Appreciation, and unit titles, such as soldier of the month or trainee of the week are not authorized for filing on the DD Form 214.

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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 17 February 1971, the date the applicant was separated. The time for the applicant to file a request for correction of any error or injustice expired on 17 February 1974.

The application is dated 20 June 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. Prior to reaching this determination the Board looked at the applicant's entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__JNS __ __REB __ __LF ___ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002076491
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030225
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.