RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060014220 


	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.


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	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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he completed a full 2 years of active military service.  

2.  The applicant states he was released from active duty just short of 24 months. He states he was released from active duty 20 days early for the convenience of the Government and he would like his discharge to reflect he was discharged early.  His mother died while he was in Germany and he was sent home.  He states the Government discharged him early instead of sending him back to Germany to be discharged.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 22 October 1982.  The application submitted in this case is dated 28 September 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 enlisted in the U.S. Army Reserve on 9 October 1980 under the delayed entry program.  He enlisted in the Regular Army on 12 November 1980 for a period of 2 years.  He completed one station unit training at Fort Bliss, Texas and was awarded military occupational specialty 16P (Air Defense Artillery Short Range Missile Crewman).  He was assigned to Germany in March 1981.

4.  Department of the Army, United States Army Regional Personnel Center, Mainz Orders Number 262-1, dated 19 September 1982, changed the applicant’s reassignment to the United States Army Separation Transfer Point, Fort Riley, Kansas with a report date of 19 October 1982.  The following additional instructions were added: “Report to Rhein Main Air Base, Air Passenger Counter, in Frankfurt Germany for movement to the Continental United States on the first available aircraft.  THIS IS AN EMERGENCY EXPIRATION TERM OF SERVICE.”  The original reassignment orders are not available.  

5.  The applicant departed Germany in October 1982.  

6.  Headquarters, 1st Infantry Division (Mechanized) and Fort Riley Orders 
184-2, dated 22 October 1982, released the applicant from active duty on 22 October 1982 and reassigned him to the U.S. Army Reserve Control Group (Annual Training) on the following date.

7.  The applicant’s DD Form 214 shows he entered active duty on 12 November 1980 and was separated on 22 October 1982 under the provisions of Army Regulation 635-200, paragraph 16-6 by reason of short length of time remaining on active duty precludes reassignment.  

8.  Item 12c (Net Active Service this Period) on the applicant’s DD Form 214 shows he completed 1 year, 11 months, and 10 days of active military service.

9.  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 pertinent part, it directs that the total active service will be entered in item 12c of the DD Form 214.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 16-6 of the version in effect at the time covered oversea returnees.  It stated that enlisted personnel in the United States or area of residence on temporary duty (TDY) or emergency leave from oversea organization who, upon completion of TDY or leave, were within 60 days of ETS, would be discharged or released as appropriate.  Affected members would be reassigned to a separation transfer point nearest their home for separation processing.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s enlistment contract shows he entered active duty on 12 November 1980 for a period of 2 years.  His expiration of term of service (ETS) would have been 11 November 1982.  

2.  The orders, dated 19 September 1982, published by the Department of the Army, United States Army Regional Personnel Center, Mainz indicate that the applicant departed Germany for separation on or about October 1982 based on an emergency ETS.  

3.  The orders, dated 22 October 1982, published by Headquarters, 1st Infantry Division (Mechanized) and Fort Riley that show the applicant was released from active duty on 22 October 1982, about 3 weeks before his normal ETS date, appear to have separated him as a normal procedure.  

4.  It is acknowledged that the applicant was separated prior to his ETS date on 11 November 1982; however, this early separation was authorized based on the governing regulation.  Based on Army Regulation 635-200, paragraph 16-6, enlisted personnel in the United States or area of residence on TDY or emergency leave from oversea organization who, upon completion of TDY or leave, were within 60 days of ETS, would be discharged or released as appropriate.

5.  Therefore, the applicant’s DD Form 214 properly reflects his date of separation as 22 October 1982 and that he completed 1 year, 11 months, and 10 days of active military service.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 October 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 October 1985.  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.



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          CHAIRPERSON


INDEX

CASE ID
AR20060014220
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070412
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.