RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 1 March 2007
DOCKET NUMBER: AR20060006808
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.
x
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 that his report of separation (DD Form 214) be corrected to reflect a total of 22 years, 1 month and 29 days of active service.
2. The applicant states that his DD Form 214 dated 25 July 1978 should be corrected to reflect that he served 22 years, 1 month and 29 days of active service because he served 3 years, 4 months and 14 days of active duty in the Air Force.
3. The applicant provides copies of his DD Form 214s.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 25 July 1978. The application submitted in this case was received on 15 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 applicants failure to timely file.
3. The applicant enlisted in the Regular Air Force on 22 June 1954 and served until he was honorably released from active duty on 5 November 1957, due to reduction in force. He had served 3 years, 4 months and 14 days of total active service and was transferred to the Air Force Reserve (USAFR) to serve the remainder of his statutory service obligation. He was honorably discharged from the USAFR on 21 June 1962. He had served 4 years, 7 months and 16 days in the USAFR.
4. On 25 February 1963, he enlisted in the Regular Army and continued to serve through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 19 November 1977.
5. On 28 July 1978, the applicant was honorably released from active duty and was transferred to the Temporary Disability Retired List (TDRL) with a 60% disability rating. He had served 18 years, 9 months and 15 days of total active service and had 23 years, 5 months and 1 days of service for pay purposes.
6. On 31 March 1980, he was removed from the TDRL and was permanently retired in the pay grade of E-7 with a 30% disability rating.
7. At the time the applicant was being processed for transfer to the TDRL, a Statement of Service (USAERC Form 3) was prepared to reflect all of the applicants service and the applicants active and inactive Air Force service was included in those computations. It should be noted that only full months count towards computation of Retired Pay.
DISCUSSION AND CONCLUSIONS:
1. The applicant served 3 years and 4 months of active service in the Air Force and 15 years and 5 months of active service in the Army before being transferred to the TDRL. He was credited with 18 years and 9 months of active service at the time he was transferred to the TDRL.
2. The applicant was also credited with 4 years and 7 months of inactive service for a total of 23 years and 5 months of total service for pay purposes, which is properly reflected on his DD Form 214.
3. Therefore, absent evidence to show that he served any periods of service that were not included on his DD Form 214 at the time of his placement on the TDRL, there appears to be no basis to correct his DD Form 214.
4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 July 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 24 July 1981. 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
___x _ ___x__ __x____ 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.
______ x______
CHAIRPERSON
INDEX
CASE ID
AR20060006808
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070301
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 1.110.0000
189/CORR 214
2.108.0000
177/PD
3.
4.
5.
6.
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