RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 22 January 2008
DOCKET NUMBER: AR20070012029
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. Deyon D. Battle
Analyst
The following members, a quorum, were present:
Mr. James E. Vick
Chairperson
Mr. Thomas M. Ray
Member
Mr. Jeffrey C. Redmann
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 correction of his records to show that he was discharged in 1969.
2. The applicant states, in effect, that his records incorrectly reflect that he was discharged in 1968 and should be corrected to show that he was discharged in 1969.
3. The applicant provides in support of his application, a copy of his Report of Transfer or Discharge (DD Form 214).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 6 January 1966, the applicant enlisted in the Army in Montgomery, Alabama, for 3 years, in the pay grade of E-1. He successfully completed his training as a field artillery crewmember. He was transferred to Vietnam on 16 June 1966.
3. The applicant was transferred to the Continental United States on 9 October 1968.
4. On 11 October 1968, Special Orders Number 285 was published releasing the applicant from active duty immediately. Accordingly, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200, chapter 5, section VII, as an overseas returnee and he was transferred to the United States Army Reserve Control Group (Reinforcement) to complete his Reserve obligation. He had completed 2 years, 9 months and 4 days of net active service.
5. The DD Form 214 that the applicant was furnished at the time of his REFRAD shows that he was discharged on 11 October 1968.
6. A review of the available record fails to show that the applicant's year of REFRAD as 1969.
7. Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214. It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of REFRAD or discharge.
8. Army Regulation 635-200, chapter 5, section VII, then in effect, provided for the separation of enlisted personnel with less than 3 months remaining to serve. It provided, in pertinent part, that specified commanders were authorized to order separation for the convenience of the Government of enlisted personnel returned to the United States, possession of the United States, or area of residence in which enlisted, inducted, or ordered to active duty after serving overseas. Enlisted member of the Regular Army and of the Reserve components who upon arrival have less than 3 months remaining before expiration of term of enlistment or period for which ordered to active duty will be discharged, REFRAD and returned to former Army National Guard or Army Reserve status, or released from active duty and transferred to the Army Reserve, as appropriate.
DISCUSSION AND CONCLUSIONS:
1. A review of the available record fails to show that the applicant was REFRAD in the year 1969.
2. His records show that he enlisted in the Army on 6 January 1966 and that, although he enlisted for 3 years, he completed on only 2 years, 9 months and 4 days of net active service prior to being REFRAD on 11 October 1968, as an overseas returnee.
3. There is no evidence in the available records, nor has the applicant submitted any evidence to support his contention that he was separated in 1969. In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.
4. In order to justify correction of a military record the applicant must show 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. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__JEV__ __TMR__ __JCR___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
___James E. Vick __
CHAIRPERSON
INDEX
CASE ID
AR20070012029
SUFFIX
RECON
DATE BOARDED
20080122
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1. 189
110.0000/SEPARATION DOCUMENT
2. 190
110.0100/CHANGE IN DATE
3.
4.
5.
6.
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