RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 May 2007
	DOCKET NUMBER:  AR20060014719 


	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. Jeffrey C. Redmann

Chairperson

Mr. Ronald J. Weaver

Member

Mr. David W. Tucker

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 that his 13 October 1970 DD Form 214 (Report of Transfer or Discharge) be corrected at items 9 (Date of Birth), 11c (Reason and Authority), 22a(2) (Other Service), 22a(3) (Total Line (1) Plus Line (2)), and 22b (Total Active Service).

2.  The applicant states that his date of birth is incorrect.  He enlisted on 9 September 1965 and served on active duty until completing flight school and receiving his warrant officer commission.  He did not discover the errors until he applied for veteran's preference from the Federal Aviation Administration.

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 13 October 1970, the date of his medical retirement.  The application submitted in this case was received on 19 October 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's verified and reported his date of birth on all enlistment documents and related forms as 4 June 1947.   This date is also reflected on his security clearance application and is the date listed on the identification card application.

4.  The records show the applicant enlisted on 9 September 1965 and was discharged on 23 October 1967 to accept a warrant officer's commission.

5.  On 17 October 1967, United States Aviation Center, Fort Rucker Special Orders Number 212 directed that the applicant be discharged from enlisted status in order accept a warrant officer's commission effective 23 October 1967.

6.  On 6 September 1967 the applicant was awarded the Good Conduct Medal for the period 9 September 1965 through 23 October 1967.

7.  On 13 October 1970, as a result of injuries received in combat in Vietnam the applicant was placed on the permanent Disability Retired List.  

8.  The DD Form 214 lists the applicant's date of birth as 4 January 1947, an SPN of 77M, other service of 1 year, 1 month, and 15 days, with a total of 4 years, 1 month, and 5 days of service and active service.

9.  Army Regulation 635-5-1 (Separation Program Number Codes), as then in effect, prescribed the specific authorities (regulatory or other directives), reasons for separating soldiers from active duty, and the separation program number (SPN) codes to be entered on the DD Form 214.  The SPN 77M is the code designating retirement based on medical disability.

DISCUSSION AND CONCLUSIONS:

1.  In this case, the applicant failed to file the application within the 3-year statute of limitations.  However, the applicant has explained or satisfactorily demonstrated through submission of relevant evidence that it would be in the interest of justice to excuse the failure to timely file.

2.  The date of birth on the DD Form 214 appears to be a typographical error of and entry of January not June on the form.  It is appropriate to correct this error.

3.  The applicant first entered active duty on 9 September 1965 and was discharged on 23 October 1967, a period of 2 years, 1 month, and 15 days.  The entry at item 22a(2) is in error and should be corrected.

4.  With the correction of the applicant's prior service, the entries at items 22a(3) and 22b should show an additional year of service.

5.  The applicant was medically discharged and placed on the retired list.  The SPN 77M is the correct entry for this type and reason of separation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__RJW__  _  __DWT_   _JCR___GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting the 13 October 1970 DD Form 214:

a.  to show the applicant's date of birth as 4 June 1947; 

b.  that he had 2 years, 1 month, and 15 days of prior active service; and

c.  5 years, 1 month, and 5 days of total service and total active service. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to deletion of the SPN 77M.




_    _Jeffrey C. Redmann_____
          CHAIRPERSON


INDEX

CASE ID
AR20060014719
SUFFIX

RECON
 
DATE BOARDED
20070524 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

6.



DISCUSSION AND CONCLUSIONS:

1.  The date of birth on the DD Form 214 appears to be a typographical error of and entry of January not June on the form.  It is appropriate to correct this error.

2.  The applicant first entered active duty on 9 September 1965 and was discharged on 23 October 1967, a period of 2 years, 1 month, and 15 days.  The entry at item 22a(2) is in error and should be corrected.

3.  With the correction of the applicant's prior service, the entries at items 22a(3) and 22b should show an additional year of service.

4.  The applicant was medically discharged and placed on the retired list.  The SPN 77M is the correct entry for this type and reason of separation.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 October 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 12 October 1973.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence or argument, 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

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting the 13 October 1970 DD Form 214:

a.  to show the applicant's date of birth as 4 June 1947; 

b.  that he had 2 years, 1 month, and 15 days of prior active service; and

c.  5 years, 1 month, and 5 days of total service and total active service. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to deletion of the SPN 77M.




______________________
          CHAIRPERSON


INDEX

CASE ID
AR20060014719
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

6.