IN THE CASE OF:	  

		BOARD DATE:	       16 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080001615 


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, in effect, that his report of separation be corrected to reflect all of his active and inactive service without any overlapping periods of service.  

2.  The applicant states that his last DD Form 214 does not reflect his re-entry back onto active duty on 14 May 1984.  He goes on to state that his DD Form 214 overlaps previous periods of service already documented by a DD Form 214 and it does not contain all of his Reserve Component service.  He continues by stating that he is attempting to obtain estimated earnings for civil service credit and cannot proceed due to the overlapping DD Form 214s.

3.  The applicant provides copies of three DD Form 214s. 

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 United States Army Reserve (USAR) on 15 June 1971 under the delayed entry program (DEP).  He enlisted in the Regular Army on 12 August 1971 for a period of 3 years.  He completed his training as a medical laboratory specialist and was transferred to Germany on 1 September 1972 in the pay grade of E-4.  

3.  On 23 May 1973, he was honorably discharged for the purpose of immediate reenlistment.  On 24 May 1973, he reenlisted for a period of 6 years.

4.  He was promoted to the pay grade of E-5 on 30 March 1974 and continued to serve until he was honorably discharged at Fort Lewis, Washington in the pay grade of E-6 on 23 May 1979, due to the expiration of his term of service (ETS).

5.  The applicant enlisted in the California Army National Guard (CAARNG) on 6 October 1979 and served in the CAARNG until he was honorably discharged on 21 January 1980 and was transferred to the USAR Control Group (ROTC).

6.  On 14 June 1982, he accepted an appointment as a USAR second lieutenant and on 7 July 1984, he accepted a Regular Army appointment as a Medical Service Corps first lieutenant.  He remained on active duty and was promoted to the rank of major on 1 September 1993.

7.  On 9 April 1999, a memorandum was dispatched to the applicant from The Adjutant General of the Army informing him that his mandatory retirement date (MRD) had been established as 1 September 1999.

8.  On 31 August 1999, he was honorably released from active duty (REFRAD) in the rank of major and was placed on the Retired List effective 1 September 1999. His DD Form 214 issued at the time of his REFRAD indicates in block 12a. that he entered active duty this period on 25 September 1976.  In block 12c. it reflects that he had served 22 years, 11 months and 6 days of total active service and in block 12d., it indicates that he had no prior active service.  In block 12e., it indicates that he had 2 years,10 months and 18 days of prior inactive service.

9.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the entry in block 12a. will be the beginning date of the continuous period of active duty for issuance of the DD Form 214, for which a DD Form 214 was not previously issued.  In block 12d. (Total Prior Active Service), enter the total amount of prior active military service from previously issued DD Form 214s.  In block 12e (Total Prior Inactive Service), enter the total amount of inactive service from previously issued separation documents.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in that block.   
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his final DD Form 214 issued on 31 August 1999 incorrectly reflects that he entered active duty on 25 September 1976 and that it overlaps his previously issued DD Form 214s has been noted and found to have merit.   

2.  At the time the applicant entered active duty as a Regular Army commissioned officer on 7 July 1984, he had served 7 years, 9 months and 12 days of prior active service and 2 years, 10 months and 10 days of prior inactive service that is documented in three previously issued reports of separation (two DD Form 214s and one NGB Form 22).  

3.  At the time he was REFRAD on 31 August 1999, he had served 15 years, 1 month and 24 days of active Federal service during this period of service as a commissioned officer.

4.  Accordingly, the applicant is entitled to have his DD Form 214 dated 31 August 1999 corrected to show in block 12a. that he entered active duty this period on 7 July 1984, that he served 15 years, 1 month and 24 days of Net Active Service this period in block 12c., that he served 7 years, 9 months and 12 days of Total Prior Active Service in block 12d., and that he had served 2 years, 10 months and 10 days of prior inactive service in block 12e.

BOARD VOTE:

__XXX __  __XXX__  __XXX__   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 on his DD Form 214 dated 31 August 1999, in block 12a., that he entered active duty this period on 7 July 1984, that he served 15 years, 1 month and 24 days of Net Active Service this period in block 12c., that he served 7 years, 9 months and 12 days of Total Prior Active Service in block 12d., and that he had served 2 years, 10 months and 10 days of prior inactive service in block 12e.





      ___        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)                                         AR20080001615



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ABCMR Record of Proceedings (cont)                                         AR20080001615



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