RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070012427 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Mr. Eric N. Anderson

Member

Mr. David K. Haasenritter

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 DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 September 1995 should be corrected to show he separated on 30 September 1997 and to properly account for his total prior active service.

2.  The applicant states, in pertinent part, that the DD Form 214 has typographical errors and it does not reflect the six months of active duty that he served in 1994, 1995, and 1996.  He states his total prior active service should be 18 months.  He further states that these corrections will affect his Veteran's benefit entitlements.

3.  The applicant provides a copy of his Army National Guard Certificate of Service, dated 12 July 1997, in support of his application.

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 enlisted in the Army National Guard (ARNG) on 13 December 1975.  He entered active duty for training (ADT) on 12 March 1976. He successfully completed basic combat and advanced individual training.  Records show he was awarded Military Occupational Specialty (MOS) 63B (Wheel Vehicle Mechanic).  The highest rank he attained was sergeant/pay grade E-5.  He retired with an honorable characterization of service on 12 December 1997, after serving 22 years in the ARNG.  

3.  The applicant's records show that he was issued two DD Forms 214.

     a.  DD Form 214 with a separation date of 23 June 1976, shows the entry in Item 18a (Net Active Service this Period) "00 (Years), 03 (Months), 23 (Days)." There is no entry in 18b (Prior Active Service).  The reason for separation cited in Item 9a was the applicant was released from ADT and was returned to the control of the Adjutant General of the State of Tennessee ARNG to complete his remaining military service obligation of 5 years and 6 months. 

     b.  DD Form 214 with a separation date of 30 September 1995, shows the applicant was released from active duty from a self-terminating order and it shows the following entries in Item 12 (Record of Service):

          1.  Item 12c (Net Active Service this Period) "00 (Years), 04 (Months), 00 (Days);"

          2.  Item 12d (Total Prior Active Service) "00 (Years), 3 (Months), 12 (Days);" and 

          3.  Item 12e (Total Prior Inactive Service) "19 (Years), 02 (Months), 06 (Days)."

4.  On 12 December 1997, he was transferred to the United States Army Reserve Control Group (Retired Reserve).  The NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) issued to the applicant on his date of separation shows he had 22 years of service for retired pay.  

5.  The applicant provided a copy of his Certificate of Service from the National Guard Bureau which recognized the applicant for his 21 years of service in the Armed Forces of the United States and the ARNG.  The certificate is dated 12 July 1997.

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-1 states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, Reserve Component active duty for training, retirement, or discharge.  In the preparation of the DD Form 214, the total prior active duty service will be calculated from previously issued DD Forms 214 and this calculation will be entered in 12d (Total Prior Active Service).

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DD Form 214 he was issued on 30 September 1995 is incorrect, that the correct date of separation should be 30 September 1997, and that his total years of active service are not properly recorded.  He further contends that this DD Form 214 does not reflect the six months of active duty that he served in 1994, 1995, and 1996.  He contends that he has 18 months total prior active service and that these corrections will effect his Veteran's benefit entitlements.

2.  There are no separation documents in the applicant's official military personnel file for the years 1994, 1995, and 1996 nor did he provide copies of the DD Forms 214 for the stated years in support of this application.  Therefore, without a DD Form 214 for each year or period of active duty service, the applicant's DD Form 214 with a separation date of 30 September 1995 cannot be corrected.  Further, there is no evidence to support the applicant's contention that his separation from active duty for training, on 30 September 1995, should be changed to the calendar year 1997. 

3.  Therefore, the applicant's DD Form 214 with a separation date of 30 September 1995 is correct as published.

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JI        _  __ENA__  __DKH__  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.





____John Infante    _____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080131
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.