IN THE CASE OF:	  

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20080011767 


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, correction to his DD Forms 214 (Certificate of Release or Discharge from Active Duty) issued:

	a.  on 19 February 1980 to reflect he served on active duty from 11 December 1975 through 10 December 1981. 

	b.  on 1 February 2000 to reflect he served on active duty from 11 February 1986 through 1 February 2000. 

2.  The applicant states that his first DD Form 214 reflects his delayed entry date, but the second DD Form 214 does not.  He is a “decorated Desert Shield/Storm veteran, 100 percent permanent, and a total cancer patient (service-connected).” His DD Forms 214 should be corrected to reflect he served 20 years and 20 days during the stated time periods for pay purposes.  He also states that he was unfairly discharged as a result of a reduction in force and he is fighting this in Federal Court.  

3.  In support of his application, the applicant provides copies of his DD Forms 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 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 show he enlisted in the United States Army Reserve (USAR) Delayed Entry Program (DEP), in pay grade E-1, on 11 December 1975, for 6 years.  He was separated from the USAR on 19 January 1976.  He completed a total of 1 month and 9 days of service in the USAR DEP.

3.  The applicant enlisted in the Regular Army (RA) on 20 January 1976 for 4 years and entered on active duty the same day.  On 13 February 1978, he extended his 4 year enlistment by one month.  He was released from active duty on 19 February 1980, at the expiration of his term of service.  He was issued a DD Form 214 that shows he was credited with completing 4 years and 1 month total active service and 1 month and 9 days of total prior inactive service.  He was transferred to the USAR Control Group (Reinforcement).

4.  The applicant was discharged from the USAR on 10 December 1981 after completing a period of 1 year, 9 months, and 20 days (20 February 1980 through 10 December 1981).  

5.  The applicant enlisted in the USAR (DEP) on 11 February 1986, for 4 years. He served in the USAR until his enlistment in the RA, completing a total of          1 year, 9 months, and 20 days of service in the USAR.

6.  The applicant enlisted in the RA on 2 April 1986 for 4 years and entered on active duty the same day.  He served continuously through several reenlistments (21 November 1989, 21 May 1992, and 15 October 1992) until he was honorably discharged from active duty, in pay grade E-6, on 1 February 2000, as a result of reduction in force.  He was issued a DD Form 214 that shows he was credited with completing 13 years and 10 months net service from 2 April 1986 to 1 February 2000 and 4 years and 1 month total prior active service for a total of 17 years and 11 months.  He was also credited with 6 years, 2 months, and 21 days of total prior inactive service for his service in the USAR.


7.  Army Regulation 635-5 (Separation Documents), dated 1 July 1981, governed the preparation of the DD Form 214.  It stated, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of retirement, discharge, or release from active duty.  The dates the Soldier entered on and separated from active duty will be entered in Items 12a and 12b.  Items 12c would contain the net active service time for the period covered by the DD Form 214.  Item 12d would contain the total amount of prior active service less lost time.  Item 12e would contain the total amount of prior inactive service (i.e., USAR and Army National Guard service) less lost time.  

8.  Army Regulation 635-5, dated 15 September 2000, specifies that Item 12a will contain the beginning date of the continuous period of active duty for issuance of this DD Form 214.  Item 12b will contain the Soldier's transition date.  Item 12c will contain the amount of service this period.  Item 12d will contain the total amount of prior active military service less lost time, if any, taken from the previously-issued DD Forms 214.  Item 12e will contain the total amount of prior inactive service, less lost time.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, the DD Form 214 that he was issued on 19 February 1980 should reflect he served on active duty from 11 December 1975 through 10 December 1981.  However, the evidence of record shows that the applicant enlisted in the USAR DEP on 11 December 1975 and was discharged on 19 January 1976.  He enlisted in the RA and entered on active duty on 20 January 1976.  At the time of his release from active duty on 19 February 1980, he was issued a DD Form 214 that properly shows a credit of 4 years and 1 month for his active duty service from 20 January 1976 through 19 February 1980.  This DD Form 214 also properly shows a credit of 1 month and 9 days of total prior inactive service for his USAR time from 11 December 1975 through 19 January 1976.  The evidence of record does not show and the applicant has not shown that he was serving on active duty prior to 20 January 1976.

2.  The applicant also contends, in effect, the DD Form 214 that he was issued on 1 February 2000 should reflect he served on active duty from 11 February 1986 through 1 February 2000.  However, the evidence of record shows the applicant was transferred to the USAR upon his release from active duty on 19 February 1980.  On 10 December 1981 he was discharged from the USAR after completing a period of 1 year, 9 months, and 20 days service.  


3.  On 11 February 1986, the applicant again enlisted in the USAR (DEP).  On    2 April 1986, he enlisted in the RA and served continuously on active duty through several reenlistments until his separation on 1 February 2000.  He was issued a DD Form 214 that properly shows a total credit of 17 years and 11 months of active service.  This represented a combined total of his previous active duty service of 4 years and 1 month and current active duty service of      13 years and 10 months.  It appears this DD Form 214 incorrectly shows he completed 6 years, 2 months, and 21 days of total prior inactive service.  Again, however, there is no evidence the applicant served on active duty from 11 February 1986 through 1 April 1986 and he has not shown otherwise.

4.  The DD Form 214, dated 1 February 2000, also shows he was credited with 6 years, 2 months, and 21 days prior inactive service.  This represented a combined total of his previous USAR service from 11 December 1975 through 10 December 1981 (1 month and 9 days) and from 20 February 1980 through 1 April 1986 (6 years, 1 month, and 12 days).  However, the evidence of record shows the applicant was discharged from the USAR on 10 December 1981 and appears to have had a break in service until his enlistment in the RA on 2 April 1986.  Therefore, his total USAR service was 1 year, 10 months, and 29 days.  However, it is the policy of this Board to not disadvantage an applicant by make the situation any worse off for having applied for a correction to their record.

5.  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.  

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

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)                                         AR20080011767



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ABCMR Record of Proceedings (cont)                                         AR20080011767


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