IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080006807 


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 that his date of separation from active duty be corrected to 25 September 1964.

2.  The applicant states that his DD Form 214 (Report of Transfer or Discharge) indicates he was separated from active duty on 12 June 1964 not on the actual date of his separation, 25 September 1964.

3.  The applicant provides copies of an Honorable Discharge Certificate, his DD Form 214, a statement from a former Congressman, a letter of support from his wife, and a letter of support from a friend and neighbor. 

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 entered active duty on 10 September 1962, completed training and was awarded the military occupational specialty (MOS) 140.07 (Field Artillery Basic).  The applicant also completed Airborne Training and was awarded the Parachutist Badge.

3.  Headquarters, 8th Infantry Division Special Orders Number 49, dated 10 February 1964, authorized the applicant 30 days leave and to use military  transportation from his duty station in Germany to his home in North Carolina.

4.  On 21 March 1964 the applicant requested a hardship discharge due to family financial and health problems.

5.  A 6 April 1964 message granted the applicant emergency leave pending a final decision on his application for a hardship discharge.

6.  A 10 June 1964 DA Form 664 (Serviceman's Statement Concerning Application for Compensation for the Veterans Administration) shows that the applicant was pending separation at this time.

7.  Headquarters, XVIII Airborne Corps and Fort Bragg Special Orders Number 129, dated 10 June 1964, released the applicant from active duty on 12 June 1964 and transferred him to the Army Reserve (USAR).

8.  The applicant's DA Form 24 (Service Record) shows that he applicant was released from active duty and transferred to the USAR on 12 June 1964.

9.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that the applicant was released from active duty and transferred to the USAR on 12 June 1964.

10.  The applicant's DD Form 214 lists his dates of service as from 12 September 1962 through 12 June 1964.  He had completed 1 year, 9 months, and 3 days of creditable service.

11.  The available record contains copies of inquires, dated between 9 October 1964 and 7 December 1964, from the Employment Security Commission, North Carolina written to the Army inquiring about the applicant's dates of active duty.  The dates of service listed on the forms are from 12 September 1962 through 
12 June 1964.

12.  A 26 November 1985 request for military service data from the United States District Court, Federal Probation Service lists the applicant's dates of service as from 12 September 1962 through 12 June 1964.

13.  A 28 March 2008 letter from H____ R____ K____, a former Congressman, states that he remembers the applicant and his father and that he assisted in getting the applicant a hardship separation in August of 1964.

14.  The applicant's wife states that she knows that her husband was released from active duty on 25 September 1964 because it was the day after their anniversary.  She states that the applicant was serving in Germany when their family situation deteriorated.  The applicant was given 30 days of emergency leave to come home and help her and was then assigned to Fort Bragg.  While at Fort Bragg he served on duty picking up Soldiers who were AWOL (absent without leave) and on one occasion was able to stop by their home on return from picking up an AWOL Soldier.  She recalls that the applicant did not receive any of his separation paperwork for over a year after his separation.

15.  A neighbor of the applicant's who has known the applicant since he was 6 years old states that she recalls that the applicant was released from active duty around the middle to late in the month of September 1964.  As a widow of a former Soldier with two sons who also served in the Army, she has experienced problems with lost records and asks that the Board believe the applicant and his records be corrected.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the personal statements submitted on behalf of the applicant, there is no official documentation showing the applicant was still on active duty after 12 June 1964.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X ___  ___X____  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.




 _   _______   ______________
       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)                                         AR20080006807



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ABCMR Record of Proceedings (cont)                                         AR20080006807



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