RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 October 2007
	DOCKET NUMBER:  AR20070007537 


	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. Rial D. Coleman

Analyst

The following members, a quorum, were present:


Ms. Susan A. Powers

Chairperson

Mr. Edward E. Montgomery

Member

Mr. Qawiy A. Sabree

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 date of separation from active duty be corrected on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show 18 May 1968.

2.  The applicant states, in effect, that his DD Form 214 incorrectly reflects that he only completed 1 year, 11 months, and 29 days of creditable active duty service.  The applicant contends the error stems from the fact that his expiration term of service (ETS) date of 18 May 1968 fell on a Saturday and he out processed at the transition point on Friday 17 May 1968.  He concludes that he needs his DD Form 214 to reflect two full years of active duty service for retirement purposes, in order to be eligible for benefits.

3.  The applicant provides a copy of his DD Form 214 in support of this case.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he was inducted on 19 May 1966.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty 11H (Infantry Direct Fire Crewman).  The highest rank he attained while serving on active duty was sergeant/pay grade E-5.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.

3.  The applicant's DD Form 214 shows that on 17 May 1968, he was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations) at his ETS and transferred to the United States Army Reserve Control Group (Annual Training).
4.  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 that for inductees, the beginning date of the continuous period of active duty will be entered in item 10c (Date Inducted).  The effective date of the transfer or discharge will be entered in item 11d (Effective Date)  Item 22b (Total Service) will show the amount of service this period, which is computed by subtracting item 10c from 11d.

5.  Item 10c (Date Inducted) of the applicant's DD Form 214 shows he entered active duty on 19 May 1966.

6.  Item 11d (Effective Date) of the applicant's DD Form 214 shows he was released from active duty on 17 May 1968.

7.  Item 22b (Total Active Service) on the applicant's DD Form 214 shows his active duty service as 1 year, 11 months, and 29 days.

8.  Evidence of record shows the applicant's ETS ended on 18 May 1968, which was a Saturday.

9.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 2 of this regulation establishes policy and prescribes procedures for separating members at the expiration of the service obligation or fulfillment of their service obligation.  

10.  Paragraph 2-2 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 2-2d, in pertinent part, states that other than aliens who were enlisted or inducted in the Regular Army for 24 months, 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.  Soldiers whose rate of pay is subject to change on a Saturday, Sunday, or legal holiday upon which they would be separated will not be discharged until their normal separation date unless they request otherwise.  Release from active duty or discharge will be dated as of the release or discharge.  Personnel released from active duty and transferred to the Army 

Reserve upon completion of the term of service for which inducted or ordered into active Federal service, or released to their Reserve component upon completion of active duty, will not be discharged until completion of their Reserve obligation.

11.  A review of available records fail to show any indication that the applicant consented to be released from active duty prior to his ETS or that he was advised of the consequences of being released prior to his ETS as it related to benefits.

DISCUSSION AND CONCLUSIONS:

1.  Paragraph 2-2d of Army Regulation 635-200 recognizes the fact that some Soldiers’ terms of service may expire on Saturday, Sunday, or a Holiday.  This paragraph provides that such Soldiers may consent to be separated on the last working day before their normal date of discharge or release from active duty or transfer to the Army Reserve.

2.  Although the applicable regulations provide that a Soldier may consent to be separated on the last working day before their ETS, those provisions are provided as a convenience to both the individual Soldier and the Department of the Army as well.  The provision is not intended in any way to deny the Soldier any benefit that they otherwise would be able to attain had they not consented to be separated on the last working day prior to their scheduled separation date.

3.  While it is common practice for Soldiers to separate on the last working day prior to the weekend of separation, the applicable regulations require that Soldiers who elect to separate early be advised of the consequences of early separation as it may affect future benefits and they must consent to such separations.

4.  Although the applicant does not contend that he was not informed that his separation on Friday, 17 May 1968, had to be with his consent, there is no evidence in the available records to show that he was properly briefed regarding the consequences of separation prior to completion of his full term of service or that his consent was obtained.

5.  Therefore, it appears that it is inherently unjust that the applicant be penalized for something that occurred through no fault of his own and that had he been properly counseled could have been avoided.  Accordingly, it would be in the 

interest of justice to correct his records to show that he separated on 18 May 1968, instead of 17 May 1968, and that he completed two years of total active service, in order for him to receive full active duty credit towards his retirement or any other benefits he may be denied as a result of his premature separation.

BOARD VOTE:

__QAW___  __EEM __  _SAP__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was honorably released from active duty and transferred to the United States Army Reserve on 18 May 1968, instead of 17 May 1968, as currently reflected on his DD Form 214, and that he be credited with two years of total active service.




__Susan A. Powers____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/10/04
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

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

ISSUES         1.

2.

3.

4.

5.

6.