IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080000154 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 30 June 1980 to show he entered active duty for training (ADT) on 1 November 1977 instead of 1 October 1978.

2.  The applicant states, in effect, that 1 November 1977 is the date he entered ADT.  He further states that he had tried in the past to correct the error and has been unsuccessful.

3.  The applicant provides his DD Form 214; page four of a DA Form 
2-1 (Personnel Qualification Record Part II), prepared on 22 April 1981; Headquarters, United States Army Support Command (USASC), Hawaii Orders 228-13, dated 26 October 1977; and Reserve Components Personnel and Administration Center Orders T-10-94152, dated 5 October 1978.

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 was born on 6 September 1935.  He had prior enlisted and commissioned officer service in the Army National Guard (ARNG) and the United States Army Reserve.  On 15 November 1975, he enlisted in the USAR.

3.  A DA Form 2166-5A (Senior Enlisted Evaluation Report) evaluated the applicant for the rating period October 1976 through September 1977.  The report shows his unit of assignment as B Company, 411th Engineer Battalion and that he performed duties as a communication chief.  

4.  Headquarters, USASC, Hawaii Orders 228-13, dated 26 October 1977, show that the applicant was ordered to ADT with a reporting date of 1 November 1977. He was to be attached to the United States Army Readiness Element (USARE), USASC, Fort Shafter, Hawaii with duty station at Wailuku, Hawaii.

5.  A DA Form 2166-5A evaluated the applicant for the rating period October 1977 through September 1978.  The report shows his unit of assignment as 
B Company, 411th Engineer Battalion and that he performed duties as a construction supervisor.  The report does not indicate that he was ADT or attached to the USARE, USASC, Fort Shafter, Hawaii with duty station at Wailuku, Hawaii.

6.  Reserve Components Personnel and Administration Center Orders T-10-94152, dated 5 October 1978 show that that applicant was ordered to ADT with a reporting date of 1 October 1978.

7.  On 30 June 1980, the applicant was relieved from ADT.  Item 12a (Date Entered AD This Period) of his DD Form 214 with the period ending 30 June 1980 shows 1 October 1978.  Item 12b (Separation Date This Period) shows 
30 June 1980.

8.  Item 35 (Record of Assignments) of the applicant's DA Form 2-1 (Personnel Qualification Record), prepared on 22 April 1981 and reviewed by the applicant 
on 18 October 1981, shows that he was on ADT assigned to the USARE, USASC, Hawaii for the period 1 November 1977 to 30 June 1980 as a training readiness noncommissioned officer (NCO).

9.  By an undated letter the Veterans Administration (VA) Regional Office, Honolulu, Hawaii responded to an inquiry from the applicant on 12 September 1980.  The VA office replied, "Since your DD Form 214 showed your active duty as from 10-1-18 to 6-30-78 (sic), VA has written to the military for verification of your service.  You claimed you went on active duty from 11-1-77."

10.  Item 35 of the applicant's DA Form 2-1 prepared on 28 October 1982 and reviewed by the applicant on 13 October 1984 shows he was in the USAR for the period 16 November 1975 to 30 September 1978 and not on active duty for that period.

11.  A United States Army Reserve Personnel Center Chronological Statement of Retirement Points, dated 12 June 2008, shows retirement year 22 January 
1977 through 21 January 1978 with zero active duty points.  Retirement year     22 January 1978 through 21 January 1979 shows 113 active duty points.

12.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  In pertinent part, it provides that an annual Statement of Retired Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 with the period ending 30 June 1980 should show he entered ADT on 1 November 1977 instead of 1 October 1978.  He provided a portion of his DA Form 2-1, prepared on 22 April 1981, that shows he served as a readiness training NCO from 1 November 1977 to 30 June 1980.  He also provided Headquarters, USASC, Hawaii Orders 228-13 that show he was ordered to ADT on 1 November 1977.  

2.  Although the applicant provided the above documents that show he was ordered to ADT and served on active duty with the USARE, USASC effective      1 November 1977, there is evidence of record that conflicts with his claim.  

3.  The applicant’s DA Form 2-1, prepared on prepared on 28 October 1982 and reviewed by him on 13 October 1984, shows he was in the USAR for the period 16 November 1975 to 30 September 1978 but that he was not on active duty for that period. 

4.  His United States Army Reserve Personnel Center Chronological Statement of Retirement Points does not show he was on active duty for period in question. He should have been receiving annual statements of retirement points that would have revealed the problem early enough for him to seek correction in a timely manner.  Also, his correspondence with the VA in 1980 indicated he was aware of the problem shortly after the period in question.  

5.  The preponderance of evidence shows the applicant entered ADT on 
1 October 1978.  Given the facts and circumstances surrounding this case      and without evidence that could validate his claim that he entered ADT on           1 November 1977, there is, unfortunately, insufficient evidence to show he entered ADT on 1 November 1977.

6.  The Defense Finance and Accounting Service might be able to locate leave and earning statements that would confirm the applicant being on active duty for the period in question.  Also, records at the VA might contain the verification for this period of active duty that it sought in 1980.  If the applicant obtains documentation substantiating his claim, he may resubmit them to this Board in accordance with ABCMR reconsideration procedures.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



							XXX
       _    _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080000154



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ABCMR Record of Proceedings (cont)                                         AR20080000154



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