IN THE CASE OF:
BOARD DATE: 18 December 2008
DOCKET NUMBER: AR20080012725
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 correction of Item 25 (Separation Authority) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was separated under the authority of paragraph 5-16 instead of 5-17 of Army Regulation (AR) 635-200 (Personnel Separations).
2. The applicant states that he requested early separation to continue his education at the time and that he should have been separated under paragraph 5-16 for early separation to further education instead of paragraph 5-17 which is used to separate Soldiers for other designated physical or mental conditions.
3. The applicant provides a copy of his DD Form 214, dated 11 April 1995; a copy of his separation orders, dated 22 March 1995; and a copy of an undated table of contents of AR 635-200, 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 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. With prior enlisted service, the applicant enlisted in the Regular Army for a period of 4 years on 12 September 1990. He held military occupational specialty (MOS) 11B (Infantryman) and attained the rank of specialist.
3. On 7 March 1995, the applicant requested a 60-day college drop to further his education. His request was approved and he was subsequently honorably separated and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 11 April 1995.
4. Item 27 of the DD Form 214 he was issued shows the entry "AR 635-200, Para 5-17" indicating that the applicant was separated under the provisions of paragraph 5-17 of AR 635-200. Furthermore, Item 28 (Narrative Reason for Separation) of this form shows the entry "Attend School."
5. The applicant provided an undated table of contents of AR 635-200 that shows paragraph 5-17 pertains to separation of enlisted Soldiers for other designated physical or mental conditions.
6. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-17 of the regulation in effect at the time provided, in pertinent part, for early separation to further education. It states that Soldiers may be discharged or released from active duty for the convenience of the government, up to 90 days prior to the expiration of their term of service, in order to attend a specific term at a college, university, vocational or technical school.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the separation authority should be corrected to reflect the correct paragraph of the regulation under which he was separated.
2. The evidence of record shows that at the time of his separation, the appropriate paragraph for early separation of enlisted Soldiers to further education was paragraph 5-17 of AR 635-200, which is correctly shown on the applicant's DD Form 214.
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.
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.
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