RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 July 2007
	DOCKET NUMBER:  AR20060016419 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk 

Member

Mr. John G. Heck

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 of service be corrected on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect 10 February 2006, the date the Army Discharge Review Board (ADRB) upgraded his discharge.  

2.  The applicant states, in effect, that his separation date should have been extended because of the time it took to get his DD Form 214 upgraded to honorable.  

3.  The applicant provides a copy of a brief self-authored statement, dated 10 October 2006; the ADRB proceedings, dated 10 February 2006; and two character reference letters in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 20 December 1993, the date of his separation from active duty.  The application submitted in this case is dated 7 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 applicant’s record shows he enlisted in the Regular Army on 13 February 1990 for a period of 2 years.  The applicant's record shows he completed basic training and advanced individual training and was awarded military occupational specialty 92A (Automated Logistical Specialist).  He was promoted to the rank of specialist/pay grade E-4 on 13 April 1992.  

4.  On 20 December 1993, the applicant was separated under the provisions of chapter 14-12c(2) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), for misconduct, with a general, under honorable conditions discharge.  He was reduced to the lowest enlisted grade. 

5.  The applicant applied to the ADRB, which determined that the character of service should be changed to honorable.  As a result, an Honorable Discharge Certificate was issued to the applicant, which shows that he was honorably discharged from the Regular Army on 20 December 1993.  This Certificate was authenticated by the Deputy Assistant Secretary (Army Review Boards).  

6.  The applicant's records shows that he was issued a new DD Form 214 which shows he served on active duty during the period 13 February 1990 through 20 December 1993.  The applicant's character of service was changed to honorable; however, there is no evidence it was the intent of the ADRB to change the applicant's separation date or to credit him with additional service.

7.  Item 12c (Net Active Service This Period) on the applicant's DD Form 214 shows he completed 3 years, 10 months, and 8 day of active military service during the period covered by the report.

8.  Item 18 (Remarks) on the applicant’s DD Form 214 shows the entry "CHARACTERIZATION OF SERVICE UPGRADED ON 10 FEBRUARY 2006 FOLLOWING APPLICATION DATED 13 JUNE 2005/NOTHING FOLLOWS."

9.  The applicant's statement, in effect, shows that he wants a new DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)), with corrected dates.  The applicant continues that the new DD Form 214 he received on 2 February 2006 can not be used because of time lost, and him not having an honorable discharge at that time.  

10.  The applicant provided two letters, dated 10 October 2006; one from his mother and the other from his sister.  They state that when the applicant entered the military he was young, helping to support his daughter, sincere, and a hard worker who required assistance after he returned from the war.  

11.  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.  

12.  Army Regulation 635-5, in effect at the time, 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 effective date of separation would be entered into item 12b of the DD Form 214.  

13.  Army Regulation 635-5, in effect at the time, also directed that additional information would be entered in item 18 on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be amended to show the date of discharge as 10 February 2006.

2.  The applicant continues that the date of separation shown on his DD Form 214 should reflect the same date his records were upgraded to show he was honorably discharged on 10 February 2006. 

3.  Additionally, there is no evidence and the applicant has not provided sufficient evidence which shows that he completed creditable military service after the effective date of his separation on 20 December 1993.

4.  Evidence of record shows that the applicant’s record of service was correctly amended to show a change in his characterization of his discharge as directed by the ADRB.  Further, there is no evidence in the available records or in the proceedings of the ADRB which indicate that it was the intent of the ADRB to change the date of the applicant's discharge.

5.  Therefore, the applicant's records contain a properly promulgated separation document which shows the effective date of his separation as 20 December 1993. As a result, there is insufficient evidence to amend the applicant's date of separation to show 10 February 2006, which would be based on the length of time it took the applicant to have his character of service upgraded to an honorable discharge.

6.  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.  The U.S. Court of Appeals, observing that applications to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JLP___  _LDS___  __JGH____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




___Linda D. Simmons__
          CHAIRPERSON




INDEX

CASE ID
AR
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.

2.

3.

4.

5.

6.