IN THE CASE OF:	  

		BOARD DATE:	        13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012034 


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 his rank and discharge dates on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 3 August 1962 be corrected.

2.  The applicant states he is providing copies of his discharge and promotion documents.

3.  The applicant provides, in support of his application, copies of his DD Form 214; his DD Form 215 (Correction to DD Form 214); a letter from XI United States Army Corps; a letter from the Claims Division, Finance Center, U.S. Army, Indianapolis, Indiana; his discharge orders; and two certificates.

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 initially commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 26 June 1953 and he was ordered to active duty on 
31 October 1953.  He was released from active duty on 6 October 1955 and promoted to 1st lieutenant in the USAR effective 7 October 1955.  He continued to serve in the USAR as a non-unit officer and a unit officer.  On 1 October 1961, he was recalled to active duty with his unit in the grade of 1st lieutenant.

3.  Headquarters Fort Devens, Fort Devens, Massachusetts, Special Orders Number 138, dated 10 July 1962 show that on 3 August 1962 the applicant was released from active duty.  Item 3a (Grade, Rate or Rank) of the applicant's 
DD Form 214 contains the entry "1st Lt O-2" (1st lieutenant/pay grade O-2).  
Item 3b (Date of Rank) shows his date of rank as 6 March 1959 and Item 11d (Effective Date) shows he was released from active duty on 3 August 1962.

4.  On 11 December 1963, the ABCMR recommended that all Department of the Army records be corrected to show the applicant was promoted to captain (CAPT)/pay grade O-3 in the USAR effective 6 October 1959 and that he was ordered to active duty on 1 October 1961 in the grade of CAPT/pay grade O-3.

5.  On 6 January 1964, the Under Secretary of the Army approved the recommendations of the 11 December 1963 ABCMR decision.

6.  The applicant submitted a letter from the U.S. Army Finance Center, dated 
10 March 1964, that addressed the matter of payment due to the applicant based on the action taken by the Under Secretary of the Army.

7.  The discharge orders, dated 25 October 1965, submitted by the applicant show he was honorably discharged from the USAR effective 25 October 1965.

8.  An Honorable Discharge Certificate, submitted by the applicant, shows his date of discharge from the Army of the United States as 25 October 1965.

9.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation stated, in pertinent part, that a DD Form 214 would be issued at the time of separation to each member of the Regular Army and each member of the Reserve components and the Army of the United States (AUS) without component called or ordered to active duty or active duty for training (ACDUTRA) for a period of 90 days or more.  




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his rank and discharge dates on his DD Form 214 with an effective date of 3 August 1962 are incorrect.

2.  The Under Secretary of the Army approved the ABCMR's recommendation to show the applicant was promoted to captain effective 6 October 1959 and ordered to active duty on 1 October 1961 in the grade of captain.  Therefore, it is appropriate to change Item 3a of his DD Form 214 to read "CAPT O-3" instead of "1st Lt O-2" and to change Item 3b to show his date of rank as 6 October 1959.

3.  The DD Form 214 is a record of active duty performed by a Soldier.  The applicant's orders show he was released from active duty on 3 August 1962.  The period the applicant spent in the USAR does not change the period during which he was on active duty.  Therefore, the effective date in Item 11d of the applicant's DD Form 214 is correct.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the following items of the applicant's DD Form 214 with an effective date of 3 August 1962:

	a.  change Item 3a to read "CAPT O-3" instead of "1st Lt O-2"; and

	b.  change Item 3b to read "6 October 1959" instead of "6 Mar 59."



2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the applicant's discharge date.



      ________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)                                         AR20080012034



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ABCMR Record of Proceedings (cont)                                         AR20080012034



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