IN THE CASE OF:	  

		BOARD DATE:	        18 FEBRUARY 2009

		DOCKET NUMBER:  AR20080011153 


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) be corrected to reflect in block 12a that he entered the service on 6 September 1972 and that he be credited with all of his service for retired pay purposes.

2.  The applicant states, in effect, that his DD Form 214 incorrectly reflects that he entered the service on 7 June 1974, when he actually enlisted on 6 September 1972, and he desires to be credited with all of his service for retired pay purposes. 

3.  The applicant provides copies of his DD Forms 214 and a copy of orders retiring him by reason of permanent physical disability.

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 was born on 26 February 1947 and enlisted in Montgomery, Alabama, on 16 September 1972 for a period of 4 years, assignment to the 101st Airborne Division, and a cash enlistment bonus.  He completed his training and was transferred to Fort Campbell, Kentucky, for his first duty assignment as a light weapons infantryman.  He was advanced to the pay grade of E-4 on 23 August 1973.

3.  On 6 June 1974, he was honorably discharged for the purpose of immediate reenlistment.  He had served 1 year, 9 months, and 1 day of total active service.  On 7 June 1974, he reenlisted for a period of 6 years and a selective reenlistment bonus.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 1 September 1979.

4.  On 10 April 1990, a physical evaluation board (PEB) convened at Fort Sam Houston, Texas, and determined that the applicant was physically unfit.  The PEB recommended that he be placed on the temporary disability retired list (TDRL) with a 60 percent disability rating and re-evaluation in September 1991.  The applicant concurred with the findings and recommendation of the PEB and waived a formal board hearing.

5.  Accordingly, he was honorably retired and placed on the TDRL effective 4 June 1990 with a 60 percent disability rating.  He was credited with 17 years, 8 months, and 29 days of total active service.  His DD Form 214 issued at the time of his retirement shows in block 12a that he entered active duty this period on 7 June 1974 and that he served 15 years, 11 months and 28 days of active service this period.  It also shows in block 12d that he had 1 year, 9 months, and 1 day of prior active service.

6.  On 13 February 1992, a PEB convened at Fort Sam Houston and determined that the applicant's condition had deteriorated since placement on the TDRL.  The PEB recommended that he be permanently retired by reason of disability with an 80 percent disability rating.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  Accordingly, he was permanently retired on 8 May 1992.

7.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  The regulation in effect prior to 1 October 1979 provided that a DD Form 214 would be issued for each period of service, to include separations for immediate reenlistment.  Each period of service would be documented by a separate DD Form 214 for each period of service.  However, effective 1 October 1979, that regulation was changed to eliminate the issuance of a DD Form 214 for immediate reenlistments.  A break in service in excess of 24 hours was required for a DD Form 214 to be issued from that point and continues to present day.  This regulation further states that for the entry in block 12a (Date Entered AD [Active Duty] This Period), 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 (emphasis added).  Additionally, a DD Form 214 will not be issued for individuals who are removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted on 6 September 1972 and served until he was honorably discharged on 6 June 1974, after having served 1 year, 9 months, and 1 day of total active service.  He was issued a DD Form 214 covering that period of service.

2.  He reenlisted the following day on 7 June 1974 and continued to serve through a series of continuous reenlistments until he was honorably retired and placed on the TDRL on 4 June 1990.  His DD Form 214 issued at that time shows that he had served 15 years, 11 months, and 28 days of active service during that period and that he had 1 year, 9 months, and 1 day of prior active service.  Accordingly, he was credited with 17 years, 8 months, and 29 days of total active service.

3.  The evidence of record shows that the applicant's DD Form 214 was prepared in accordance with the applicable regulations in effect at the time and that he was credited with all service he had served.  His prior active service was made a matter of record in a previously issued DD Form 214 and was carried forward on his last DD Form 214.  Therefore, he is not entitled to a correction of his last DD Form 214 to reflect a change in dates or service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      ________XXX_________________
                 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)                                         AR20080011153



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ABCMR Record of Proceedings (cont)                                         AR20080011153



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