IN THE CASE OF:	  

		BOARD DATE:	        31 MARCH 2009

		DOCKET NUMBER:  AR20080013795 


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 item 15 (Date Entered Active Duty This Period) of his DD Form 214 (Report of Separation from Active Duty) be changed to show that he enlisted on 13 December 1975.

2.  The applicant states that he enlisted on 13 December 1975 with the understanding that he would report to basic training upon completion of high school and was led to believe that his service commencing on 13 December 1975 would count as the start of his military duty.  He also states that after serving honorably for 3 years, he found out that he needs his service in the United States Army Reserve (USAR) Delayed Entry Program (DEP) counted to qualify for additional veteran's medical benefits.

3.  The applicant provides his DD Form 214 and pages one and three of his DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States) in support of this application.

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 records show that he enlisted in the USAR DEP on 13 December 1975.  Also on this date, the applicant signed a DA Form 3286-40 (Statements for Enlistment – Delayed Entry Program), which was properly witnessed, in which he acknowledged that he would be assigned to the USAR Control Group (Delayed Entry), that his time in the DEP would be in a nonpay status, and that he would not be authorized to participate in any Reserve training.  He also acknowledged that his time served in the Reserve would be creditable for pay purposes when he enlisted in the Regular Army or entered active duty.

3.  On 29 June 1976, the applicant enlisted in the Regular Army for a period of 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 31B (Field Communications Electronic Equipment Repairman) and was later awarded MOS 31B (Tactical Communications Systems Operator/Mechanic).  He then was reassigned to Fort Bragg, North Carolina, where he served until he was honorably released from active duty on 29 June 1979 and was reassigned to the USAR Control Group (Reinforcement).  On 12 December 1981, he was honorably discharged.

4.  Item 15 of the applicant's DD Form 214 shows that he entered active duty on 30 June 1976.  Item 9d (Effective Date) of this document also shows that he was released from active duty on 29 June 1979 and item 18a (Net Active Service This Period) of this document shows that he completed 3 years of active duty service.  Item 18d (Prior Inactive Service) of this document also shows that he completed 6 months and 17 days of inactive service prior to entering active duty on 30 June 1976.  It should be noted that the applicant served 6 months and 17 days in the USAR DEP from 13 December 1975 to 29 June 1976.

5.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 and states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that item 15 of his DD Form 214 should be changed to show that he enlisted on 13 December 1975.

2.  While the applicant enlisted in the USAR on 13 December 1975, he did not enlist in the Regular Army and enter active duty until 30 June 1976.  As a result, item 15 of his DD Form 214 correctly reflects his active duty service.

3.  The fact that the applicant stated that he was led to believe that his military service in the USAR DEP would count as the start of his military duty was noted.  However, while his service in the USAR DEP was creditable for pay purposes when he enlisted in the Regular Army, his service in the USAR DEP was in a nonpay status, he was not authorized to participate in any Reserve training, and none of this service was active duty service. 

4.  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.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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.



ABCMR Record of Proceedings (cont)                                         AR20080013795





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ABCMR Record of Proceedings (cont)                                         AR20080013795



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