RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 August 2007
	DOCKET NUMBER:  AR20070001575 


	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. Michael J. Flynn

Chairperson

Mr. Larry W. Racster

Member

Mr. Donald W. Steenfott

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 the terminal date of reserve obligation that is shown on his discharge document.

2.  The applicant states, in effect, that he believes the terminal date of reserve obligation of 21 October 1969 that is shown on his discharge document should be corrected because he reenlisted in the U.S. Army Reserve (USAR) on several occasions and was honorably discharged on 30 November 1976.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of
10 September 1964 and 2 DD Forms 356A (Honorable Discharge Certificates), dated 30 September 1971 and 30 November 1976.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 November 1976, the date of his discharge.  The application submitted in this case is dated 23 January 2007.

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 contain a DD Form 4 (Enlistment Record - Armed Forces of the United States), dated 22 October 1963, that shows the applicant enlisted in the USAR for a period of 6 years on 22 October 1963.

4.  The applicant’s military service records contain a DD Form 214, with an effective date of 10 September 1964, which shows he was ordered to active duty for training on 20 March 1964, honorably released from active duty (REFRAD) on
10 September 1964, and transferred to the USAR.  Item 18 (Terminal Date of Reserve Obligation) of the DD Form 214 contains the entry “21 Oct 69.”  At the time of his REFRAD, the applicant was credited with completing 5 months and
21 days net active service and 4 months and 29 days inactive service.

5.  The applicant's military service records contain a DD Form 4 (Enlistment Contract - Armed Forces of the United States), dated 22 October 1969, that shows he reenlisted in the USAR on 22 October 1969.  The applicant’s records show that he continued to serve in the USAR until he was honorably discharged on 30 September 1971.

6.  The applicant's military service records contain a DD Form 4 (Enlistment Contract - Armed Forces of the United States), dated 1 December 1973, that shows he enlisted in the USAR on 1 December 1973.  The applicant’s records show that he continued to serve in the USAR until he was honorably discharged on 30 November 1976.

7.  In support of his application, the applicant provides a copy of his DD Form 214, with an effective date of 10 September 1964, which shows, in pertinent part, that he was ordered to active duty for training on 20 March 1964, honorably REFRAD on 10 September 1964, and transferred to the USAR.  This document also shows his terminal date of reserve obligation as 21 October 1969.  The two DD Forms 356A show that the applicant was honorably discharged from the USAR on 30 September 1971 and 30 November 1976.

8.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's REFRAD, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.

9.  Paragraph 39 (Item 18 – Terminal Date of Reserve Obligation) of Army Regulation 635-5 states that if the individual (other than Army National Guard (ARNG) personnel on active duty for training) incurred a service obligation under Title 10, United States Code, subsection 651a (formerly the Universal Military Training and Service Act) and is being returned to State control as a member of the ARNG or is being transferred or returned to the Army Reserve for the purpose of satisfying the obligation, enter the date (day, month, and year) such service obligation should terminate.

10.  Title 10, United States Code, Section 651 (10 USC 651), Members: required service, provides in subsection a, in pertinent part, that each person who becomes a member of an armed force shall serve in the armed forces for a total initial period of not less than six years nor more than eight years, as provided in regulations prescribed by the Secretary of Defense for the armed forces under his jurisdiction and by the Secretary of Homeland Security for the Coast Guard when it is not operating as service in the Navy, unless such person is sooner discharged under such regulations because of personal hardship.  Any part of such service that is not active duty or that is active duty for training shall be performed in a reserve component.  Subsection b provides that each person covered by subsection a who is not a reserve, and who is qualified, shall, upon his release from active duty, be transferred to a reserve component of his armed force to complete the service required by subsection a.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the terminal date of reserve obligation shown in Item 18 of his DD Form 214 should be corrected to read 30 November 1976 because that is the actual date he was discharged from USAR.

2.  The evidence of record shows that under the provisions of 10 USC 651, the applicant was required to serve in the armed forces for a total initial period of not less than 6 years nor more than 8 years.  The evidence of record also shows that the applicant enlisted in the USAR for a period of 6 years on 22 October 1963, thus his required military service obligation expired on 21 October 1969.  The evidence of record further shows that the date “21 October 1969” was entered in Item 18 (Terminal Date of Reserve Obligation) of the applicant’s DD Form 214, which accurately reflects the date the applicant’s initial military service obligation terminated.  Therefore, the applicant is not entitled to correction of Item 18 of his DD Form 214.

3.  The Board notes that the applicant’s two Honorable Discharge Certificates, showing he was honorably discharged from the USAR on 30 September 1971 and 30 November 1976, properly document his character of service for the two subsequent USAR service obligations that he entered into on 22 October 1969 and 1 December 1973, respectively.  However, these two USAR military service obligations were not incurred and do not represent the applicant’s initial military service requirement incurred under 10 USC 651.

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 November 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 November 1979.  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

___MJF__  ___LWR_  ___DWS_  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.




__  __Michael J. Flynn_____
          CHAIRPERSON




INDEX

CASE ID
AR20070001575
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/14
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19761130
DISCHARGE AUTHORITY
AR 135-178, Paragraph 3-1 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
100.0100.0000
2.

3.

4.

5.

6.