RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060010417 


	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, in effect, that his dates of service be corrected on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and that his unspecified leave of absence be included in these dates.  

2.  The applicant states he injured his back in training.  He states that his commanding officer threatened him with various articles and he was intimidated to resign.  

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred on 27 January 1983.  The application submitted in this case is dated 28 June 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 DD Form 4 (Enlistment/Reenlistment Document) shows he enlisted in the Regular Army on 4 November 1982 for a period of 3 years.  His DA Form 2-1 (Personnel Qualification Record) shows his date of enlistment as 4 November 1982.  

4.  He was assigned to one station unit training at Fort Benning, Georgia for training in military occupational specialty 11B (Infantryman).

5.  An Entrance Physical Standards Board (EPSBD) evaluated the applicant 
on 5 January 1983 for a diagnosis of mechanical low back pain.  He was given a physical profile of 113111.  After careful consideration of medical records, laboratory findings, and medical examinations, the EPSBD found that the applicant was medically unfit for enlistment in accordance with current medical fitness standards.  

6.  On 17 January 1983, the applicant concurred with the EPSBD proceedings and requested to be discharged from the U.S. Army without delay.  The unit commander recommended the applicant be discharged.  

7.  On 24 January 1983, the discharge authority directed that the applicant be discharged from the service under the provisions of Army Regulation 635-200, paragraph 5-11 for failure to meet medical procurement standards.

8.  Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia Orders 
15-32, dated 25 January 1983, discharged the applicant from active duty effective 27 January 1983.  

9.  Item 12a (Date Entered Active Duty This Period) on the applicant's DD Form 214 shows he entered active duty on 4 November 1982.

10.  Item 12b (Separation Date This Period) on the applicant's DD Form 214 shows he was separated on 27 January 1983.

11.  Item 12c (Net Active Service This Period) on the applicant's DD Form 214 shows he completed 2 months and 24 days of active military service during the period covered by the report.

12.  Item 18 (Remarks) on the applicant’s DD Form 214 shows the entry “Excess Leave 8 Days from 821227 to 830103 NOTHING FOLLOWS.”

13.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In the version in effect at the time, it directed that the beginning date of the continuous period of active duty will be entered in item 12a for issuance of this DD Form 214, for which a DD Form 214 was not previously issued, and the date separation was accomplished would be entered in item 12b of the DD Form 214.

14.  Army Regulation 635-5, in effect at the time, directed that inclusive dates of nonpay/excess leave would be entered in item 18 on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the Regular Army on 4 November 1982 and was discharged from active duty on 27 January 1983.

2.  The applicant's DD Form 214 was prepared to properly reflect the date of his enlistment as 4 November 1982 and the effective date of his separation as 27 January 1983.  Therefore, there is no basis for correcting his service dates on his DD Form 214.

3.  The applicant’s DD Form 214 reflects excess leave from 27 December 1982 to 3 January 1983 in item 18.  It cannot be determined if this period is the “leave of absence” in which the applicant requests to be added to his DD Form 214.  However, it is properly included in item 12c on his DD Form 214.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 January 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 26 January 1986.  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
AR20060010417
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
100.0000
2.

3.

4.

5.

6.