IN THE CASE OF:	  

		BOARD DATE:	        25 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013919 


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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected in item 12 (Record of Service).

2.  The applicant states he had 4 years of active service in the U.S. Marine Corps (USMC).  After a break in service followed by service in the Nevada Army National Guard (NVARNG), he enlisted in the Regular Army.  When he was discharged from the Army, the dates in Item 12 were adjusted to account for his prior USMC active service.  He adds he is trying to rejoin the National Guard, but his Army 214 is a problem because of the dates.

3.  The applicant provides:

	a.  his DD Form 214 from the USMC,

	b.  his DD Form 214 from the Regular Army,

	c.  a copy of a DD Form 368 (Request for Conditional Release) allowing him to enlist in the Regular Army in 2001, and

	d.  a personal statement.



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 served on active duty in the USMC from 13 November 1996 through 12 November 2000.  He was issued a DD Form 214 showing 4 years of creditable active Federal service.

3.  The applicant joined the NVARNG after leaving the USMC.  In May 2001, he sought a conditional release from the NVARNG in order to enlist in the Regular Army.  He was granted a conditional release.

4.  The applicant enlisted in the Regular Army on 18 June 2001 and served until honorably discharged by reason of a non-disability physical condition on 22 October 2003.  His DD Form 214 erroneously shows in item 12:

12a		Date Entered AD This Period		1997  06  19
12b		Separation Date This Period		2003  10  22
12c		Net Active Service This Period	0006  04	04
12f			Foreign Service						0000  05  22

5.  Item 18 (Remarks) shows that he served in Afghanistan from 19 December 2001 through 10 June 2002.

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be 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.  It states, in pertinent part, 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.  Regarding item 12, it states:

RECORD OF SERVICE. Use extreme care in completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information.

a.  Date Entered Active Duty (AD) This Period.  Enter the beginning date of the continuous period of AD for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.

b.  Separation Date This Period.  The Soldier's transition date.  This date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended for make up of lost time, or retained on active duty for the convenience of the Government.

c.  Net Active Service This Period.  Amount of service this period, computed by subtracting item 12a from 12b.  Lost time under 10 USC 972 and non-creditable time after ETS, if any, are deducted.  Such time will be identified in block 18.  If Soldier was released from active duty because of voided enlistment, enter "00 00 00."

d.  Total Prior Active Service.  From previously issued DD Forms 214, enter total amount of prior active military service less lost time, if any.  If not applicable, enter "00 00 00."

e.  Total Prior Inactive Service.  From previously issued DD Forms 214 and/or Enlisted Record Brief (ERB)/Officer Record Brief (ORB), enter the total amount of prior inactive service, less lost time, if any.  Delayed Entry Program time that began on or after 1 Jan 85 is not creditable service for pay purposes and will not be entered in this block.  However, it is creditable service for completing the statutory military service obligation, and will be entered in block 18.

f.  Foreign Service.  From the ERB/ORB, enter the total amount of foreign service completed during the period covered in block 12c.



g.  Sea Service.  Enter the total amount of sea service completed during the period covered in block 12c.  Verification is orders format 332 (Army Regulation 600-8-105) stating sea duty is required and proof that the Soldier actually served on that duty.

h.  Effective Date of Pay Grade.  From the most recent promotion order (or reduction instrument), enter the effective date of promotion to the current pay grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his Army DD Form 214 be corrected in item 12.

2.  The applicant’s Army DD Form 214 is incorrect.  He enlisted on 18 June 2001, not 19 June 1997.  Army Regulation 635-5 mandates that item 12a reflect the beginning date of the continuous period of AD for issuance of this DD Form 214.  Thus, his Army DD Form 214 should reflect:

12a		Date Entered AD This Period		2001  06  18
12b		Separation Date This Period		2003  10  22
12c		Net Active Service This Period	0002  04	05
12f			Foreign Service						0000  05  23

Item 12f (Foreign Service) should reflect the time the applicant spent in Afghanistan from 19 December 2001 through 10 June 2002 (as stated in item 18 (Remarks) of his Army DD Form 214), which is 5 months and 23 days, vice 5 months and 22 days as stated on his DD Form 214.

BOARD VOTE:

___X_____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting Item 12a through h to reflect:

12a		Date entered AD This Period		2001  06  18
12b		Separation Date This Period		2003  10  22
12c		Net Active Service This Period	0002  04	05
12f			Foreign Service						0000  05  23



      _______ _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)                                         AR20080013919



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ABCMR Record of Proceedings (cont)                                         AR20080013919



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