RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060006772 


	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.




Acting Director



Analyst

The following members, a quorum, were present:



Chairperson


Member


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 record be corrected to show that he had no break in service between his first and second enlistment periods.

2.  The applicant states, in effect, that he was issued separation documents
(DD Form 214) that incorrectly show he was discharged from the Army on 17 January 1977, and that he reentered the Army on 29 September 1978.  He indicates that he was scheduled to leave Germany in January 1977, but he was unable to due to his wife’s pregnancy.  He states that their baby was born
7 February 1977.  He also indicates that they departed Germany in March 1977, at which time he was reassigned to Aberdeen Proving Grounds to attend the Automotive Repair Course and graduated in June 1977.  He further states that he was then reassigned to Fort Knox Kentucky, where he remained until his reassignment to Bamberg, Germany in the fall of 1978.  He finally states that he left Bamberg, Germany in December 1981 for an assignment at Fort Riley, Kansas, where he stayed until he was finally discharged from the Army in September 1983.

3.  The applicant provides the following documents in support of his application:  17 January 1977 and 28 September 1983 DD Forms 214; United States Army Ordnance and Chemical Center and School Diploma, dated 17 June 1977; Certification of Birth Abroad, dated 2 March 1977; Letters of Appreciation (3); Personnel Qualification Record (DA Form 2-1) Page 3; and Immunization Record (Standard Form 601).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 28 September 1983.  The application submitted in this case is dated 1 May 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 applicant’s military record shows that he initially enlisted in the Regular Army (RA) and entered active duty on 24 July 1973.  He was trained in, awarded and served in military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).

4.  On 17 January 1977, the applicant was honorably discharged for the purpose of immediate reenlistment.  The separation document issued at that time shows he completed 3 years, 5 months, and 24 days of active military service.  The applicant authenticated this document with his signature in Item 29 (Signature of Person Being Separated).

5.  The applicant's Military Personnel Records Jacket (MPRJ) contains an Enlistment Contract-Armed Forces of the United States (DD Form 4), which shows he reenlisted in the RA on 18 January 1977, and the record confirms he remained serving on active duty until 28 September 1978, at which time he was honorably discharged.  The DD Form 214 he was issued at this time confirms he completed 1 year, 8 months, and 11 days of active service for the period covered by the separation document (18 January 1977-28 September 1978), and that he completed a total of 3 years, 5 months, and 24 days of prior active military service.  

6.  On 29 September 1978, the applicant reenlisted and he continued to serve on active duty until 28 September 1983, at which time he was honorably discharge.  The DD Form 214 issued at that time shows he had completed 5 years active duty service for the period it covered by the separation document (29 September 1978-28 September 1983), and a total of 5 years, 2 months, and 5 days of prior active military service.  The applicant also authenticated this separation document with his signature in Item 21 (Signature of Member Being Separated).

7.  Army Regulation 635-5 (Separation Documents) prescribes 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 establishes standardized policy for preparing and distributing the DD Form 214.  The current regulation provides for issuing a DD Form 214 only upon the completion of a continuous period of active duty service.  However, at the time the applicant served, DD Forms 214 were issued upon completion of each active duty enlistment even when a member was immediately reenlisting.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his record should be corrected to show he had no break in service between his first and second enlistment periods has been carefully considered.  However, there is insufficient evidence to support granting the requested relief.  

2.  The evidence of record confirms that the applicant initially entered active duty on 24 July 1973 and that he continued to serve through two reenlistment periods without any breaks in service, as evidenced by his 17 January 1977, 
28 September 1978, and 29 September 1983 separation documents.  As a result, the applicant’s military record accurately documents his 10 years,
2 months, and 5 days of continuous active duty service from 24 September 1973 through 28 September 1983.

3.  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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 September 1983.  There fore, the time for him to file a request for correction of any error or injustice expired on 
27 September 1986.  He failed to 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

___WDP_  __PMS__  __JLP___  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.




_____William D. Powers_____
          CHAIRPERSON


INDEX

CASE ID
AR2060006772
SUFFIX

RECON
NO
DATE BOARDED
2007/03/13
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1983/09/28
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
ETS
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0100
2.

3.

4.

5.

6.