IN THE CASE OF:	 

		BOARD DATE:	       16 April 2009

		DOCKET NUMBER:  AR20080007349 


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 items 12a (Date entered AD [Active Duty] This Period) and 12d (Total Prior Active Service) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 
30 November 1996 be corrected.

2.  The applicant states, in effect, that he entered active duty on 29 November 1976 and that he completed 20 years of active duty.  He contends that his retirement DD Form 214 is incorrect, that it does not show he completed 
20 years of active duty, and that his retired pay should be based on 20 years of active duty.  

3.  The applicant provides a diploma, an Honorable Discharge certificate, and a DD Form 214 (Report of Separation from Active Duty) for the period ending 
27 June 1979 in support of his application. 

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 Regular Army on 29 November 1976 for a period of 3 years.  On 27 June 1979, he was honorably discharged for immediate reenlistment.

3.  Item 15 (Date Entered Active Duty This Period) on the applicant's DD Form 214 for the period ending 27 June 1979 shows the entry "76 11 29" 
[29 November 1976].

4.  On 28 June 1979, the applicant reenlisted.  He remained on active duty through continuous reenlistments until he retired on 30 November 1996 in the rank of staff sergeant.

5.  Item 12a on the applicant's DD Form 214 for the period ending 30 November 1996 shows the entry "1979 06 28" [28 June 1979].  Item 12c (Net Active Service This Period) of this DD Form 214 shows he served 17 years, 5 months, and 
3 days of net active service this period.  Item 12d on this DD Form 214 shows he had 2 years, 6 months, and 29 days of prior active service.

6.  In the processing of this case, a staff advisory opinion was obtained from the U.S. Army Human Resources Command, St. Louis, Missouri.  The opinion states, in pertinent part, that the applicant's retired pay is based on 20 years and 2 days of total active service.  A copy of the applicant's DA Form 2339 (Application for Voluntary Retirement), dated 14 May 1996, was provided with the advisory opinion which shows his total active service creditable for retirement is 20 years and 2 days.    

7.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The applicant did not respond within the given timeframe.

8.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  The regulation states, in pertinent part, that the purpose of a separation document is to provide the individual with documentary evidence of his/her military service.  It is a vital record for interested Government agencies which assist the veteran in 

obtaining the rights and benefits to which he/she is entitled.  Therefore, it is important that information entered is complete and accurate.  The regulation states that for item 12a, enter the beginning date of the continuous period of AD for issuance of this DD Form 214 for which a DD Form 214 was not previously issued (emphasis added).  It also states that for item 12d (Total Prior Active Duty), from previously issued DD Forms 214, enter the total amount of prior active military service less lost time, if any.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant enlisted in the Regular Army on 
29 November 1976, which is properly reflected on his DD Form 214 for the period ending 27 June 1979.  He entered into a continuous period of Regular Army service beginning on 28 June 1979.  Additionally, his period of prior active service is properly reflected in item 12d on his DD Form 214 for the period ending 30 November 1996.  Therefore, there is no basis for granting the applicant’s request to amend items 12a or 12d of his DD Form 214 for the period ending 30 November 1996.

2.  The evidence of record supports the applicant's contention that his retired pay should be based on 20 years of active duty.  His DA Form 2339 and the advisory opinion indicate that his retired pay is based on 20 years and 2 days of total active service.   

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.




      _______ _   X_______   ___
               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)                                         AR20080007349





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ABCMR Record of Proceedings (cont)                                         AR20080007349



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