RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070000702 


	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. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn

Member

Mr. Michael J. Flynn

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, correction of his discharge document.

2.  The applicant states, in effect, that he entered active duty on 17 May 1951 and was released from active duty (REFRAD) on 30 June 1979; however, this date of entry on active duty is not recorded on his discharge document.

3.  The applicant provides a copy of a DD Form 214 (Report of Separation from Active Duty), with an effective date of 30 June 1979 and DD Form 13 (Statement of Service), dated 31 December 1980.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 June 1979, the date he retired from active duty.  The application submitted in this case is dated 28 December 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 military service records show that he was inducted into the Army on 17 May 1951.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 4745 (Gunsmith).

4.  The applicant's military service records contain a DD Form 214 (Report of Separation from the Armed Forces of the United States), with an effective date of 10 January 1952.  This document shows, in pertinent part, that the applicant was inducted into the Army of the United States on 17 May 1951 and discharged on 10 January 1952 for the purpose of his immediate reenlistment in the Regular Army (RA).  At the time, he had completed 7 months and 24 days service for pay purposes.

5.  The applicant’s military service records contain a DD Form 4 (Enlistment Record – United States) that shows he reenlisted in the RA on 11 January 1952 for a period of 3 years.

6.  The applicant’s military service records contain a DD Form 4 that shows he reenlisted in the RA on 13 August 1954 for a period of 6 years.

7.  The applicant’s military service records contain a DD Form 4 that shows he reenlisted in the RA on 13 August 1960 for a period of 6 years.

8.  The applicant's military service records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 12 August 1966.  This document shows, in pertinent part, that the applicant was honorably discharged on 12 August 1966 for the purpose of his immediate reenlistment in the RA.  At the time, he had completed 6 years net service during this period; 9 years, 2 months, and 26 days other service; and
15 years, 2 months, and 26 days total service.

9.  The applicant’s military service records contain a DD Form 4 that shows he reenlisted in the RA on 13 August 1966 for a period of 6 years.

10.  The applicant's military service records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 15 May 1972.  This document shows, in pertinent part, that the applicant was honorably discharged on 15 May 1972 for the purpose of his immediate reenlistment in the RA.  At the time, he had completed 5 years, 9 months, and
3 days net service during this period; 15 years, 2 months, and 26 days other service; and 20 years, 11 months, and 29 days total service.

11.  The applicant’s military service records contain a DD Form 4 that shows he reenlisted in the RA on 16 May 1972 for a period of 3 years.  The applicant’s military service records also contain a DA Form 1695 (Oath of Extension of Enlistment), dated 28 September 1973, that shows he extended his 3-year enlistment of 16 May 1972, a period of 48 months, to a period of 7 years.
The applicant’s military service records also contain a DA Form 1695, dated
17 January 1979, that shows he extended his 7-year enlistment of 16 May 1972, a period of 1 month and 15 days, to a period of 7 years, 1 month, and 15 days for the purpose of submitting his application for retirement.

12.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, Orders 33-30, dated 5 February 1979.  These orders show, in pertinent part, that the applicant was relieved from active duty on 30 June 1979 and transferred to the U.S. Army Reserve Control Group (Retired) on 1 July 1979.

13.  The applicant's military service records contain a DD Form 214 (Report of Separation form Active Duty), with an effective date of 30 June 1979.  This document shows, in pertinent part, that the applicant was discharged on 30 June 1979 for the purpose of his retirement from active duty in the RA.  At the time, he had completed 7 years, 1 month, and 15 days net service during this period;
20 years, 11 months, and 29 days prior active service; and 28 years, 1 month, and 14 days total service.

14.  The applicant's military records contain a letter from the applicant, dated
28 May 1980, that shows, in pertinent part, the applicant requested a Statement of Service from 17 May 1951 to 30 June 1979 because his DD Form 214 (with an effective date of 30 June 1979) “only show[s] from 1972 to 1979.”

15.  The applicant's military service records contain a DD Form 13 (Statement of Service), dated 31 December 1980.  This document shows that the applicant served honorably and continuously on active duty from 17 May 1951 through
30 June 1979 and was placed on the retired list, effective 1 July 1979.

16.  In support of his application, the applicant provides a copy of his DD Form 214, with an effective date of 30 June 1979 and DD Form 13 (Statement of Service), dated 31 December 1980.  The DD Form 214, in pertinent part, documents the applicant’s final period of active duty service from 16 May 1972 to 30 June 1979.  The DD Form 13, in pertinent part, documents that the applicant served honorably and continuously on active duty from 17 May 1951 through
30 June 1979.

17.  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 also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Enlisted/Officer Qualification Record, separation approval authority documentation or order, or any other document authorized for filing in the Official Military Personnel File (OMPF).  The Separation Documents regulation also contains item-by-item instructions for completing the DD Form 214.  The instructions for Item 9d (Effective Date) state to enter the effective date of discharge shown on the separation orders using a 6-digit format.  The instructions for Item 15 (Date Entered Active Duty This Period) state to enter the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the date shown in Item 15 (Date Entered Active Duty This Period) of his DD Form 214 should be corrected to show that he entered active duty on 17 May 1951.  However, he provides insufficient evidence in support of his claim.

2.  The evidence of record shows that the applicant initially entered active duty on 17 May 1951 and that he served continuously on active duty until he retired from active duty on 30 June 1979.  However, the evidence of record also shows that the applicant was issued DD Forms 214 on 10 January 1952, 12 August 1966, and 15 May 1972 (i.e., dates immediately prior to dates of his immediate reenlistments in the RA), which serve to document specific periods of his active duty service.  Thus, based on the applicant’s DD Form 214 (with an effective date of 15 May 1972), the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued (emphasis added) to the applicant was
16 May 1972.  Therefore, based on the Army regulatory guidance in effect at the time, the applicant’s final DD Form 214 was properly prepared to cover the last period of his active duty service, from 16 May 1972 to 30 June 1979.

3.  The evidence of record shows that the applicant’s DD Form 214, with an effective date of 30 June 1979, shows that the applicant’s total service for pay at the time he retired from active duty was 28 years, 1 month, and 14 days.  This total service for pay accurately documents the applicant’s record of service for his active duty service from 17 May 1951 through 30 June 1979.  Therefore, in view of the all of the foregoing, the applicant is not entitled to correction of his
DD Form 214, with an effective date of 30 June 1979.

4.  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 has failed to submit evidence that would satisfy this requirement.  

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 June 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 June 1982.  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

___JTM__  ___RJO _  ___MJF_  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.




      __John T. Meixell_____
          CHAIRPERSON




INDEX

CASE ID
AR20070000702
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/19
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19790630
DISCHARGE AUTHORITY
AR 635-200, Chapter 12
DISCHARGE REASON
Sufficient Service for Retirement
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
103.0100.0000
2.

3.

4.

5.

6.