RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 June 2007
      DOCKET NUMBER:  AR20060017116


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. LaVerne M. Douglas            |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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:

The applicant's request and argument is provided by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant's request
that the separation date listed on his separation document (DD Form 214) be
changed from 4 August to 5 August 1964.

2.  Counsel states, in effect, that the Board's original analysis was
faulty in that the records clearly show the applicant was separated from
active duty on
4 August 1964 and that he was allowed 24 hours to reach his destination.
Therefore, 5 August 1964 is the earliest date he should have been
separated, not the recorded 4 August 1964, as is currently listed on the DD
Form 214.  Counsel claims that it is against Army policy to fail to give
the required 24 hours from the date of release to the date of separation
and a simple correction of the DD Forms 214 separation date to 5 August
1964 is all that is being requested.

3.  Counsel further states that it should be noted the applicant was eager
to get home and took the fastest route then available, which was Stand-By
on United Airlines and not military stand-by.  He states the airlines were
booked solid and the route taken by the applicant was the most direct
route.  He states that because of the booking delays, it took 4 days for
the applicant to reach home, not the allowed single day.  Counsel states
the applicant is making this request because it will reflect the Army's
mandated allowed time, and because it will permit the applicant to qualify
for the pension benefits he earned from serving in Korea, where he was
severely and permanently injured.  Counsel claims a denial of this request
will result in extreme hardship and blatant injustice.  He states that to
be fair and accurate, the Board must grant this request at the earliest
possible time.

4.  Counsel provides a self-authored letter and a doctor's statement in
support of this request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20060004039, on 19 September 2006.

2.  During its original deliberations on this case, the Board determined
the applicant was properly released from active duty on 4 August 1964, in
Oakland, California, and was allowed 1 day of travel time to his place of
entry on active duty, which was Denver, Colorado.  The Board also noted
that the estimated date of arrival of 14 August 1964, listed in Item 4
(Should Arrive Home On or About), of the DA Form 2376 (Notification to
State Adjutants General Release From Active Duty of Obligated Reservist)
provided was only intended for information purposes by the State Adjutant
General and did not impact his actual date of separation, which was 4
August 1964.

3.  The new argument provided by the applicant through counsel essentially
argues that the travel time allowed the applicant to his home of record
should in fact have resulted in a change to his separation date because the
Army was mandated by law to provide the travel time, and that the
correction is necessary for the applicant to obtain pension benefits from
the Department of Veterans Affairs (VA).

4.  Counsel also provides a doctor's statement as new evidence.  This
statement indicates the applicant suffers from the following medical
problems:  CNS Brian Post Concussive Syndrome; Cataracts (Both Eyes);
Cervical Spine Neurological Problems; Lumbar Spine Neurological Problems;
and Bilateral Knee and Leg Numbness.  The doctor further states that these
problems need urgent or acute care and therefore, the application to the
Board should be processed as soon as possible.  He further indicates the
applicant has a claim pending with the VA and can not get care for these
conditions until his VA claim is processed and the
DD Form 214 correction is a necessary first step in this VA claim process.


5.  The applicant's DD Form 214 confirms he was honorably released from
active duty on 4 August 1964, after completing 2 years, 9 months and 4 days
of active military service.  It also shows that he was transferred to the
United States Army Reserve to complete his military service obligation.
The applicant authenticated this document with his signature on the date of
his separation.

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents that must be prepared for Soldiers on retirement, discharge,
release from active duty service, or control of the Active Army.  It
establishes standardized policy for preparing and distributing the DD Form
214.  The regulation provides instructions for preparing the DD Form 214
and states, in effect, that the separation date will be the actual date the
member is separated from service.  There are no provisions that allow for
changing this date to account for travel time to a home of record that may
be authorized in conjunction with a member's release from active duty.
7.  Title 38 of the Code of Federal Regulations provides guidance on
pensions, bonuses and veterans' relief.  Part 3 provides VA adjudication
procedures, and Paragraph 3-6 provides guidance on duty periods.
Subparagraph B7 states that a person discharged or released from a period
of active duty, shall be deemed to have continued on active duty during the
period of time immediately following the date of such discharge or release
from such duty determined by the Secretary concerned to have been required
for him or her to proceed to his or her home by the most direct route, and,
in all instances, until midnight of the date of such discharge or release.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's reconsideration request and the argument provided by
counsel were carefully considered.  However, there is insufficient evidence
to support granting the requested relief.

2.  By regulation, the date the member is actually released from active
duty will be entered on the DD Form 214.  There are no regulatory
provisions allowing for an adjustment of this date to account for
subsequent travel time to the member's home of record after separation.
The evidence of record in this case confirms the applicant was actually
released from active duty at Oakland, California, on
4 August 1964, and this is the date properly recorded on his DD Form 214,
as required by regulation.

3.  While the applicant's current medical situation is unfortunate, this
does not provide a basis for a correction to the separation date listed on
his DD Form 214. CFR 38 is applicable to the adjudication process used by
the VA for pensions, bonuses and veterans' benefits.  Under these
provisions, it appears the VA could during the adjudication process deem
that the member continued on active duty during the period of time
immediately following the date of release from active duty determined by
the Secretary concerned to have been required for him or her to proceed to
his or her home by the most direct route, and, in all instances, until
midnight of the date of such discharge or release.  This is a deemed
determination made during the VA adjudication process and does not impact
the separation date entered on separation documents, which are based on
Army regulatory guidance and reflect that actual date of a member's release
from active duty.

4.  In view of the facts of this case, absent any evidence that indicates
that
4 August 1964 was not the actual date of the applicant's separation, it
seems the VA and not this Board would be the appropriate venue for the
applicant and counsel to advance any pension related appeal or argument
that is based on travel time required or authorized subsequent to the
applicant's actual separation date.  The law cited by counsel does not
automatically provide 24 hours of travel time and only stipulates that in
all instances the time allotted will be until midnight of the date of
separation, which in this case remains 4 August 1964.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant and his
counsel have failed to submit evidence that would satisfy this requirement,
or that would support amendment of the Board's original determination on
this matter.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LMD __  __EEM__  __RMN__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of
the ABCMR set forth in Docket Number AR20060004039, dated 19 September
2006.




                                  _____LaVerne M. Douglas___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060017116                           |
|SUFFIX                  |                                        |
|RECON                   |AR20060004039 / 2006/09/19              |
|DATE BOARDED            |2007/06/12                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1964/08/04                              |
|DISCHARGE AUTHORITY     |AR 635-205                              |
|DISCHARGE REASON        |OS Rtn                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]