RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 August 2007
	DOCKET NUMBER:  AR20070001609 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. Rodney E. Barber

Member

Mr. Rowland C. Heflin

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 records be corrected to show  
all of his U.S. Army Reserve (active status), and Regular Army service.  As a result of this correction, he further requests that his records be corrected to show he was retired for years of service and that he is eligible for Combat Related Special Compensation (CRSC) and the Defense Enrollment Eligibility Reporting System (DEERS) programs.  Also, he requests that his separation pay not be recouped.

2.  The applicant states, in effect, that he believes his records were in error or unjust because he was wrongfully discharged, documents pertaining to prior active service and reserve service are missing from his records, and his benefits were denied.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), Statement of Service worksheet, a DA Form  
3340 (Request for Regular Army Reenlistment or Extension), a DVA Decision Cover Letter, dated 10 May 2006, a Letter Order from the U.S. Army Reserve, St. Louis, Missouri, a DVA letter (a proposal to reduce his payment) dated 
24 February 1993, and his separation order with an amendment.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 29 January 1992.  The application submitted in this case is dated 25 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 records show that he entered active duty on  
15 June 1970.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 16B2O (Hercules Missile Crewman).  On 19 December 1971, he was honorably released from active duty after serving 1 year, 6 months, and 5 days of active service.

4.  He was transferred to the U.S. Army Reserve Control Group (Annual Training), St. Louis, Missouri, where he served as a Reservist during the period 20 December 1971 to 28 February 1974 for a total of 2 years, 2 months, and  
11 days of inactive service (not active duty).  On 1 March 1974, the applicant reenlisted and entered the Regular Army.  He served continuously on active duty until he was honorably discharged.

5.  His records show that he was ineligible to complete 20 years of service towards retirement, because he received two General Officer Written Reprimands for driving while intoxicated.  On 20 June 1990, he received a Department of the Army (DA) Bar to Reenlistment.  On 17 May 1991, the DA Bar to Reenlistment was reviewed and it remained in effect.

6.  On 29 January 1992, the applicant was honorably discharged.  The DD Form 214 he was issued shows in item 12c (Record of Service) Net Active Service This Period 12 years, 8 months, and 20 days.

7.  Item 12d (Total Prior Active Service) shows 6 years, 8 months, 14 days and in item 12e (Total Prior Inactive Service) it shows 2 years, 2 months, and 11 days.  The applicant was credited with a total of 19 years, 5 months, and 4 days of active federal service.

8.  The DVA proposed in their letter to reduce the applicant's DVA payments of $911.00 to $000.00 until the $14,168.73 he received in separation pay was recouped.  

9.  The DVA's Decision Cover Letter also states that the applicant's entitlement to individual unemployability was discontinued because the applicant failed to return the DVA "Employment Questionnaire."

10.  CRSC, as established by Section 1413a, Title 10, United States Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it was not for the statutory prohibition for a military retiree to receive a VA disability pension.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.

11.  The DEERS program is a system operated by the Department of Defense and used by TRICARE contractors to determine and confirm the eligibility of beneficiaries.

12.  Army Regulation 635-5 (Separation Documents) states, in pertinent part, that you enter the amount of service during the period covered by the DD Form 214, by subtracting item 12a (Record of Service Date Entered Active Duty this Period) from item 12b (Record of Service Separation Date This period).  Any lost time under title 10, USC 972 and non-creditable time after Expiration Term of Service (ETS), if any, are deducted.  Such time will be entered in item 18 (Remarks) of the DD Form 214.  This same regulation states, in pertinent part, enter in item 12d the total amount of prior active military service less lost time, if any, and also enter in item 12e the total amount of prior inactive service, less lost time, if any.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his records be corrected to show 20 years of service, to include his Reserve service, so that he can be eligible for retirement, CRSC, and DEERS programs.  Also, he requests his separation pay not be recouped.

2.  Evidence shows the applicant received a DA Bar to Reenlistment, which made him ineligible to complete 20 years of service.  The applicant's military service computation is accurately recorded in item 12 (Record of Service) of his DD Form 214 and there is no evidence or indication of any documents missing from his military records.  As such, the applicant is not entitled to 20 years of active service, retirement, CRSC, or DEERS programs.

3.  It appears that the applicant erroneously believes that his inactive duty (time served in the U.S. Army while assigned to the U.S. Army Reserve Control Group) should have been credited towards his active duty years of service.

4.  The Board has no authority over the DVA or the withholding of DVA benefits until his separation pay is recouped.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 January 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
28 January 1995.  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

___pms__  ___reb__  ____rch__  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.




_________Paul M. Smith______
          CHAIRPERSON




INDEX

CASE ID
AR20070001609
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070828
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.