IN THE CASE OF:
BOARD DATE: 7 August 2008
DOCKET NUMBER: AR20080009039
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 separation document (DD Form 214) be corrected to show that he served 2 years of active duty.
2. The applicant states his active service time is 2 years, not 19 months.
3. The applicant provides a letter from the Maryland State Retirement Agency and his DD Form 214.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that Special Order Number 179 dated 17 September 1969 shows that the applicant had been inducted and directed he report to active duty not later than 18 September 1969.
3. The applicant was awarded the military occupational specialty of petroleum storage specialist and was promoted to pay grade E-4. He served in Vietnam from 3 March 1970 to 21 April 1971.
4. Special Orders Number 112 dated 22 April 1971 shows the applicant was honorably released from active duty on 22 April 1971.
5. The DD Form 214 the applicant was issued shows that he was inducted on 17 September 1969 and was released from active duty, by reason of early release of overseas returnee, on 22 September 1971. However, Item 22 of his DD Form 214, Net Service This Period, shows the applicant served 1 year, 7 months and 6 days of active duty.
DISCUSSION AND CONCLUSIONS:
1. Orders confirm that the applicant entered active duty on 17 September 1969 and was released from active duty on 22 April 1971. That is 1 year, 7 months, and 6 days of active duty. As such, Item 22, Net Service This Period, is correct.
2. The error in this case is the effective date of the applicants separation (22 September 1971). That should read 22 April 1971. However, the applicant did not ask for this date to be corrected, and the Board cannot make a correction which is not requested by an applicant.
3. In view of the foregoing, there is no basis for granting the applicants request.
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) AR20080009039
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