IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080002391 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 October 1981 be corrected to show his Reserve Obligation Terminal Date as 7 November 1984 and his rank and grade as Specialist Four (SP4), E-4.

2.  The applicant states, in effect, that his actual separation date was                   7 November 1984.  He was promoted to SP4, E-4, before separating from the Active Reserve in November 1984.  He was active duty for over 3 years and finished his 6-year term in the Active Reserve.  His DD Form 214 also does not reflect his last unit in Texas. 

3.  The applicant provides two letters of appreciation, one dated 8 May 1979 and one dated 9 March 1981; SP4 orders, dated 30 September 1983; and a letter, dated 4 June 1984.  

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 U. S. Army Reserve (USAR) (not the Delayed Entry Program) on 29 March 1978 for 6 years.  He enlisted in the USAR (Delayed Entry Program) on 21 September 1978.  He enlisted in the Regular Army on 24 October 1978.  

3.  The applicant was advanced to Private First Class, E-3, on 1 August 1979.

4.  On 15 June 1981, the applicant was convicted by a special court-martial of violating a lawful general regulation by wrongfully transferring duty-free goods to a person not authorized duty-free import privileges and of wrongfully and unlawfully making and subscribing under oath a false statement.  He was sentenced to be reduced to the grade of E-1, to be restricted to the limits of Camp Pelham for 60 days, to perform extra duty for 45 days; and to forfeit $300.00 pay per month for 3 months.  On 9 July 1981, the convening authority approved the sentence.

5.  There is no evidence of record to show the court-martial conviction was overturned.

6.  On 26 October 1981, the applicant was honorably released from active duty upon the completion of his required service after completing 3 years and 1 day of creditable active service during that enlistment with 2 days of lost time.  He was transferred to the USAR Control Group (Reinforcement).  

7.  Items 4a (Grade, Rate or Rank), and 4b (Pay Grade) of his DD Form 214 for the period ending 26 October 1981 shows his rank and grade as Private, E-1.    Item 7 (Last Duty Assignment and Major Command) shows his last assignment as Headquarters and Headquarters Battery, 2d Battalion, 17th Field Artillery, Eighth United States Army, Korea.  Item 12h (Effective Date of Pay Grade) shows his effective date of rank as 9 July 1981 (the date his sentence by court-martial was approved).  Item 12l (Reserve Obligation Terminal Date) shows his Reserve obligation would end on 28 March 1984.  

8.  On or about 11 April 1983, the applicant was assigned to a USAR troop program unit in Texas.  

9.  The applicant was promoted to SP4, E-4 on 30 September 1983.  

10.  On 7 November 1984, the applicant was honorably discharged from the USAR.

11.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

12.  Army Regulation 135-178 establishes policies governing the administrative separation of enlisted Soldiers from the Army National Guard of the United States and the USAR.  In pertinent part, it states that upon expiration of term of service (ETS) the Soldier will be discharged by the separation authority.  It also states that when through administrative error a Soldier is not discharged on the actual date of his or her ETS, he or she will be considered to have been retained beyond normal discharge date for the convenience of the Government.

13.  Army Regulation 135-91 defines Army National Guard and USAR service obligations.  It states that before 1 June 1984 all personnel incurred a 6-year statutory obligation on initial entry into the Armed Forces, with a few certain exceptions.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant was not actually discharged from the USAR until 7 November 1984.  His statutory obligation ended 6 years after his initial, 29 March 1978, enlistment.  He was not statutorily obligated to serve beyond 28 March 1984, and there is no evidence of record to show he was contractually obligated to serve beyond that date.  

2.  Since it appears the applicant should have been, but was not, discharged on his actual USAR ETS date, he was considered to have been retained beyond his normal discharge date for the convenience of the Government.  However, his DD Form 214 for the period ending 26 October 1981 properly shows his Reserve Obligation Terminal Date as 28 March 1984.

3.  The evidence of record shows that the applicant was convicted by a special court-martial and his sentence, which in part included a reduction to Private, E-1, was approved on 9 July 1981.  

4.  The DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty and provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  At the time the applicant was released from active duty on 26 October 1981, he was a Private, E-1.  He was not promoted to SP4 until September 1983, after he was released from active duty.  Therefore, his rank of SP4 would not be entered on his DD Form 214 for the period ending 26 October 1981.  For the same reason, 
his last, USAR, unit in Texas would not be reflected on this DD Form 214. 

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.



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 _   _______   ______________
       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)                                         AR20080002391





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ABCMR Record of Proceedings (cont)                                         AR20080002391



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