IN THE CASE OF:	  

		BOARD DATE:	  5 February 2009

		DOCKET NUMBER:  AR20080009373 


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 final Certificate of Release or Discharge from Active Duty (DD Form 214) be corrected by including all his active duty service.  

2.  The applicant states, in effect, that he served on active duty continuously from 1 November 1979 through 10 June 1988 and his DD Form 214 did not accurately document this service. 

3.  The applicant provides DD Forms 214, dated 22 November 1978 and 10 June 1988; Leave and Earnings Statements (LESs) (November 1979-December 1980); DD Form 4/1 (Enlistment/ Reenlistment Document); a DA Form          4188 (Military Personnel Office/Finance Office Verification of MPRJ and PFR); and a DA Form 2 (Automated Personnel Qualification Record) in support of his request. 

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’s military record shows that he enlisted in the Army National Guard (ARNG) and entered initial active duty for training (IADT) on 10 August 1978.  Upon completion of IADT on 22 November 1978, he was awarded military occupational specialty (MOS) 11B (Infantryman), honorably released from active duty (REFRAD), and returned to his ARNG unit.  The DD Form 214 issued to him at that time shows he completed a total of 3 months and 13 days of active military service during this period.

3.  The applicant's record contains Headquarters, First United States Army, 
Fort George G. Meade, Maryland Orders 163-28, dated 13 September 1979, which ordered him to active duty as a member of the ARNG, effective 2 November 1979, for a period of 20 months and 17 days.  His Personnel Qualification Record (DA Form 2-1) shows, in Item 35 (Record of Assignments), that he was assigned to the United States Army Reception Station, Fort Jackson, South Carolina on 2 November 1979.  It further shows he was reassigned to Fort Campbell, Kentucky, where he arrived for duty on 7 November 1979, and that he remained at his current station until his reassignment to Germany on 11 March 1982.

4.  On 18 June 1981, Headquarters, 101st Airborne Division and Fort Campbell, Permanent Orders 169-15, awarded the applicant the Army Good Conduct Medal (AGCM) for his qualifying period of active duty service from 2 November 1979 to date of separation on or about 17 July 1981.  

5.  A DD Form 4/1 on file in the applicant's record shows he immediately "reenlisted" in the Regular Army on 14 August 1981 for a period 5 years.  There is no evidence of record to show that he had a previous "enlistment" in the Regular Army.  This document also includes an entry in Item 9 (PREV MIL SVC UPON ENL/REENL) that shows at that point, he had completed a total of 2 years, 1 month, and 24 days of active military service.  He later extended his enlistment for 25 months.


6.  The applicant provided and his record also contains a copy of a DA Form 4188 and a DA Form 2 which list his Basic Active Service Date (BASD) as         19 July 1979.

7.  On 10 June 1988, the applicant was honorably REFRAD.  The DD Form 214 issued to him at the time contains the following entries in the Item 12 (Record of Service):  Item 12a (Date Entered Active Duty This Period), “81 08 14”; Item 12b (Separation Date This Period), “ 88 06 10”; Item 12c (Net Active Service This Period), “06 09 27”;  and Item 12d (Total Prior Active Service), “00 03 13.”

8.  The applicant provides LESs for the period 1 November 1979 through 
30 December 1980, which show he received active duty pay during this period. 

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  The regulation currently in effect stipulates, in pertinent part, that a DD Form 214 will be issued for each continuous period of active duty service for which a previous DD form 214 has not been issued.  Chapter 2 contains item-by-item instructions for completing the DD Form 214.  The instructions for Item 12a state to enter the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.  For Item 12c, the instructions state to enter the amount of service completed during the period covered by the DD Form 214, which is computed by subtracting the date in Item 12a from the date in Item 12b.

10.  Army Regulation 635-5 in effect at the time stipulated that item 12a would reflect the first day of the last immediate reenlistment for which a DD Form 214 was not issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his final DD Form 214 should be corrected by adding his service performed from November 1979 to 14 August 1981, and to accurately document his total active duty service has been carefully considered and found to have merit.  

2.  The evidence of record confirms the applicant completed 3 months and 
13 days of active duty service from 10 August 1978 to 22 November 1978, as evidenced by his DD Form 214 issued for that period.  It also shows he was 

ordered to active duty on 2 November 1979, as evidenced by active duty orders on file in his record and entries in the record of assignments on his DA Form 2-1, and that he continuously served on active duty through reenlistment until his final separation on 10 June 1988.  

3.  Further, the DA Form 4188 and DA Form 2A provided by the applicant confirm his BASD was 19 July 1979, which would have been arrived at by subtracting his initial 3 months and 13 days of active duty service from 2 November 1979, which is the last date he entered a continuous period of active 
duty service.  

4.  The regulation in effect was confusing.  It stated that item 12a would reflect the first day of the last immediate reenlistment for which a DD Form 214 was not issued.  As it appears that the applicant did not have any reenlistment, much last a last reenlistment, the clerk preparing his DD Form 214 used the date of his last enlistment (i.e., 14 August 1981) in item 12a.  

5.  The applicant did enter his last continuous period of active duty service on     2 November 1979.  In the interest of clarity and as an exception to the policy in effect at the time (and in accordance with the current guidance), it would be appropriate to correct his final DD Form 214 to show he entered active duty on    2 November 1979 and to correct Item 12a and Item 12c of his DD Form 214 accordingly.

BOARD VOTE:

____x___  ___x____  ____x___  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 amending his 10 June 1988 DD Form 214 by:

   a.   deleting the current entry in Item 12a and replacing it with the entry
“79 11 02”;
   b.   deleting the current entry in Item 12c and replacing it with the entry
“08 07 09”; and
   
   c.  issuing him a correction to his separation document that reflects these changes.



      _________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)                                         AR20080009373



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009373



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1