RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060005813 


	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. Gerard W. Schwartz

Acting Director

Mr. G. E. Vandenberg

Analyst

The following members, a quorum, were present:


Mr. Ted S. Kanamine

Chairperson

Mr. Larry C. Bergquist

Member

Ms. LaVerne M. Douglas

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his DD Form 214 (Certificate of Release or Discharge) be corrected to include his service under the Delayed Entry Program (DEP) as active duty.

2.  The applicant states he was issued a DD Form 215 (Correction to DD Form 214) that lists his DEP but it did not add the DEP period to his total active duty service. 

3.  The applicant provides copies of five documents related to Combat-Related Special Compensation (CRSC) and two related to a correction of his records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 June 1995, the date of his retirement.  The application submitted in this case is dated 24 April 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The records show the applicant enlisted in the U.S. Army Reserve (USAR) under the DEP on 25 March 1975.  The applicant requested and was discharged from the DEP on 14 July 1975 and enlisted in the Regular Army on 15 July 1975 for a period of 3 years.

4.  The applicant served on active duty from 15 July 1975 through 14 July 1978 with inactive service from 15 July 1978 through 16 April 1979.  He again enlisted in the Regular Army on 17 April 1979 and served until he accepted a voluntary early retirement on 30 June 1995.

5.  The applicant’s DD Form 214 issued on 14 July 1978, covering his initial period of service, did not reflect his DEP service.  However, a DD Form 215 was issued on 13 February 2006 to add in item 27 (Remarks) his period of service under the DEP.
6.  The 30 June 1995 DD Form 214 shows the applicant had 19 years, 2 months, and 14 days of active duty with 1 year and 22 days of inactive service.  The applicant's period of service under the DEP is included in the total period of inactive service but not specifically denoted in the remarks section.

7.  A DA Form 2339 (Application for Voluntary Retirement, dated 18 April 1995, lists the applicant's periods of service as 19 years, 2 months, and 14 days of active Federal Service and 1 year and 22 days of inactive service.

8.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states, in pertinent part, that item 12a (Date Entered AD this Period) will be completed to show the beginning date of the continuous period of active duty for issuance of the present DD Form 214, for which a DD Form 214 was not previously issued.  Item 12c (Net Active Service This Period) will be completed to show the amount of service, computed by subtracting item 12a from 12b (Separation Date This Period).  Item 12d (Total Prior Active Service) will be completed to show the amount of prior active military service, less lost time, if any, and item 12e (Total Prior Inactive Service) will be completed to show the amount of total prior inactive service, plus the amount of inactive service from previously issued DD Forms 214, less lost time, if any.  DEP time which begins on or after 1 January 1985, is not creditable service for pay purposes and will not be included in item 12c, but is creditable service towards the fulfillment of the statutory military service obligation (MSO). 

9.  Army Regulation 635-5, paragraph 2-4h(12)(e) (Total Prior Inactive Service) states "From previously issued DD Forms 214 and/or ERB/ORB, enter the total amount of prior inactive service, less lost time, if any.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in this block.  However, it is creditable service for completing the statutory MSO, and will be entered in block 18."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's period under the DEP was not a period of active duty and as such it is not included in his total period of active duty.  However, since it occurred prior to 1 January 1985, it is and was creditable service for pay purposes and was included on the 1995 DD Form 214.

2.  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.
3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 June 1995; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 June 1998.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LMD___  __LCB___  __TSK__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_     _Ted S. Kanamine_____
          CHAIRPERSON


INDEX

CASE ID
AR20060005813
SUFFIX

RECON
 
DATE BOARDED
20070227 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
129
2.

3.

4.

5.

6.