RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 July 2007
	DOCKET NUMBER:  AR20070002552 


	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. Jeanette R. McCants



Mr. Thomas M. Ray



Mr. Jeffrey C. Redmann



	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 that her date of separation from Active Duty be corrected on her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show 17 November 1990.

2.  The applicant states, in effect, that her Basic Active Service Date (BASD) is 18 November 1987.  The applicant continues that she fulfilled her 3-year service obligation and received an honorable discharge from Active Duty.  The applicant continues that to the best of her knowledge she completed out-processing at Fort Dix, New Jersey on 16 November 1990, and was given an airline ticket to fly to her home of record in Ohio, on 17 November 1990.  The applicant adds that she did not complete her 3-year service obligation until she returned to her home of record.

3.  The applicant provides copies of her DD Form 214, her Release from Active Duty Orders, and DA Form 2A (Personnel Qualification Record, Part I), in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 16 November 1990, the date of her release from active duty.  The application submitted in this case is dated 4 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 DA Form 2A shows that she enlisted in the Regular Army for a period of 3 years.  The Form also shows that her BASD as 18 November 1987 and his Expiration of Term of Service (ETS) as 17 November 1990.

4.  The applicant completed basic training and advanced individual training and was awarded military occupational specialty 98H (Morse Code Interceptor).  

5.  On 16 November 1990, the applicant was honorably released from active duty under the provisions of chapter 4, of Army Regulation 635-200 (Personnel Separations) at her ETS and transferred to the United States Army Reserve Control Group (Reinforcement).  The applicant's record shows that she completed 2 years, 11 months, and 29 days of total active service.  The highest grade the applicant held was specialist/pay grade E-4.

6.  Item 12a (Date Entered Active Duty This Period) on the applicant's DD Form 214 shows she entered active duty on 18 November 1987.  

7.  Item 12b (Separation Date this Period) on the applicant's DD Form 214 shows she was released from active duty on 16 November 1990.

8.  Item 12c (Net Active Service this Period) on the applicant's DD Form 214 shows her active duty service as 2 years, 11 months, and 29 days. 

9.  The applicant provides a copy of DA Form 2A (Personnel Qualification Record, Part I), dated 8 November 1990, which indicates her ETS is 17 November 1990.

10.  Army Regulation 635-200 (Personnel Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of this regulation establishes policy and prescribes procedures for separating members at the expiration of the service obligation or fulfillment of their service obligation.  

11.  Paragraph 4-2d of Army Regulation 635-200, in pertinent part, states that a Soldier enlisted or ordered to active duty normally will be discharged or released from active duty on the date he/she completes the period for which enlisted or ordered to active duty.  Paragraph 4-2e, in pertinent part, states that other than aliens who enlisted in the Regular Army for 3 years, some Soldiers’ terms of service expire or they otherwise become eligible for discharge or release from active duty on a Saturday, Sunday, or legal holiday.  These Soldiers may consent to be discharged or released to or transferred to the United States Army Reserve on the last working day before their normal date of discharge or release.  This includes (1) Soldiers within 30 days of their ETS date who return to continental United States (CONUS) for separation.  (2) Soldiers listed in b, above, whose terms of service expire or who otherwise become eligible for separation on a Saturday, Sunday, or legal holiday.  These Soldiers may consent to be released from active duty and be transferred to the USAR on the last working day before the normal date of discharge or release if otherwise appropriate; however, they may not be discharged on such date.  (As an exception, Soldiers whose early separations will leave them 90 days short of completing their 6-year or 8-year obligation will be discharged.)  (3) Soldiers whose rate of pay is subject to change on a Saturday, Sunday, or legal holiday upon which they would be separated.  These soldiers will not be discharged until their normal separation date unless they request otherwise.  The actual date of release or discharge will be recorded in DD Form 214, item 1–2b.  (4) Personnel released from active duty and transferred to the USAR upon completion of the term of service for which ordered into active Federal service, or released to their Reserve Component upon completion of AD.  These soldiers will not be discharged until completion of their reserve obligation.

12.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In pertinent part, it states in item 12a (Date Entered Active Duty this Period) that the beginning date of the continuous period of active duty will be entered.  Item 12c (Net Active Service this Period) will show the amount of service this period, which is computed by subtracting item 12a from 12b (Separation date this Period).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her date of release from active duty as shown on her DD Form 214 should be corrected to show she completed her 3-year service obligation on 17 November 1990.

2.  Evidence of record shows the applicant enlisted in the Regular Army on 18 November 1987 for 3 years service.  The applicant's DD Form 214 shows she was released from active duty on 16 November 1990 and credited with 2 years, 11 months, and 29 days in the Regular Army.  

3.  Evidence of record shows the applicant's ETS would have ended on 17 November 1990, which was a Saturday.  Based on Chapter 4-2 of Army Regulation 635-200, if a Soldier’s term of service expires on a Saturday, Sunday, or legal holiday, these Soldiers will be discharged or released to or transferred to the United States Army Reserve on the last working day before their normal date of discharge or release.

4.  Therefore, the applicant's date of discharge is correct as currently constituted.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 November 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 15 November 1993.  Although the applicant did not file within the 3-year statute of in the interest of justice to excuse failure to timely file in this case based on the relief being granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JRM___  _JCR____  _TMR___  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 to show the applicant was released from active duty on 17 November 1990. 

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.




__Jeanette R. McCants__
          CHAIRPERSON






INDEX

CASE ID
AR20070002552
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE
  
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.