RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 
	DOCKET NUMBER:  AR20070017965 


	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.









      The following members, a quorum, were present:













	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, correction to his DD Form 214 (Report of Separation from Active Duty), Item 18a (Net Active Service This Period) to show he served 3 years instead of 2 years.  He also requests, in effect, retroactive separation pay and travel pay.

2.  The applicant states, in effect, he believes he actually served 3 years which made his separation pay incorrect.  He also states that he entered the Army on 12 April 1973, delayed entry.  He was separated at the expiration of his term of service on 12 April 1976.  He knows he did have 2 days of lost time.  However, he submitted an application for correction of his record and his record was corrected.  He also believes as a result of that correction he is due additional separation pay with interest from 12 April 1976.  His travel pay was wrong for the time he spent in the Reserve.  

3.  In support of his application the applicant provides copies of letters to and from the Chief, Support Division, St. Louis, Review Boards Agency; his Enlistment Contract; his DD Form 214; and his DD Form 215 (Correction to DD Form 214, Certificate or Release or Discharge from Active Duty).

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 military records show he enlisted in the United States Army Reserve, in pay grade E-1, on 3 April 1973, for 6 years.  He entered active duty on 12 April 1973.

3.  The applicant's records show he was reported absent without leave (AWOL) from 17 October through 20 October 1974, a period of 4 days.
4.  The applicant was separated from active duty, in pay grade E-4, on 12 April 1976 and transferred to the USAR Control Group (Reinforcement).  Items 18(a) (Net Active Service This Period) and 18(c) (Record of Service) (Total Active Service), of his DD Form 214, shows he was credited with 2 years, 11 months, and 27 days total active service.  Item 18(e) (Total Service for Pay) shows he was credited with 2 years and 6 days of total service for pay.  Item 27 (Remarks) shows he was credited with 4 days of lost time due to being AWOL.

5.  The applicant was honorably discharged from the USAR on 2 April 1979.

6.  On 9 October 1991, the applicant applied to have his DD Form 214 issued on 
12 April 1976 corrected to reflect his correct dates of service.  He was issued a DD Form 215, dated 22 January 1993 correcting Item 18 (sic, should read 15 - Date Entered Active Duty This Period) of his DD Form 214, issued on 12 April 1976, to show he entered on active duty on 12 April 1973. 

7.  Title 31, United States Code, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, United States Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to correction to his DD Form 214 to show he served three years instead of two.

2.  The evidence of records shows the applicant was issued a DD Form 215, dated 22 January 1993, reflecting his correct date of entry on active duty.  Correction to that date did not require correction to Items 18(a) and 18(c) of his DD Form 214, as the applicant could not be credited with serving 3 years on active duty based on his 4 days lost time due to AWOL.  Therefore, the calculations for his period of active duty from 12 April 1973 to 12 April 1976, minus the 4 days lost time, is properly shown on his DD Form 214.

3.  It is noted that the applicant is entitled to a correction to Item 18e, of his DD Form 214, to show his total service for pay of 2 years, 11 months, and 27 days.

4.  There is no evidence that the applicant is entitled to retroactive separation pay and travel pay and he has provided none.  No pay records were available for review.  There is simply no information provided nor available evidence to support this portion of the applicant’s request.  The statute of limitations for a claim against the Government expired six years after the date of the applicant's discharge.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing on his DD Form 214, dated 12 April 1976, in Item 12(e), 2 years, 11 months, and 27 days.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction to his DD Form 214 to show he served three years instead of two years and that he is entitled to retroactive separation pay and travel pay.




      _________x_____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070017965


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508