IN THE CASE OF:	  

		BOARD DATE:	  	  11 December 2008

		DOCKET NUMBER:  AR20080014212 


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 his records be corrected to show his entire length of service and his pay grade.       

2.  The applicant states, in effect that he enlisted in the Regular Army in June 1976, attended basic training at Fort Leonard Wood, Missouri and he was discharged in September 1978 from Fort Sill, Oklahoma. 

3.  The applicant provides no additional documents in support of his 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 he enlisted in the Regular Army on
3 October 1974.  He did not successfully complete basic combat or advanced individual training and therefore, he was not awarded a military occupational specialty (MOS). The highest grade he held was private (PV1)/E-1.

3.  Item 9d Item (Effective Date) of the applicant's DD Form 214 (Report of Separation from Active Duty) shows he was honorably discharged from active duty on 23 October 1974.  He was credited with 21 days of total active service.

4. The applicant's military records show he again enlisted in the Regular Army on
23 August 1976.  He again did not successfully complete basic combat or advanced individual training and therefore, was not awarded an MOS.  The highest grade he held during this period of service was PV1.

5.  Item 9d of the applicant's second DD Form 214 shows that on 21 September 1977 he was discharged at Fort Sill, OK in accordance with Army Regulation 635-200, Chapter 10, by reason of discharge in lieu of trial by court-martial, and issued an Under Other Than Honorable Conditions Certificate.  He was credited with 3 months of total active service and 303 days of time lost due to being absent without leave (AWOL).

6.  Item 18b (Prior Active Service) of the applicant's DD Form 214 dated 
21 September 1976 shows "00 years, 00 months, and 00 days."

7.  Item 18c (Total Active Service) of the applicant's DD Form 214 dated
21 September 1976 shows "00 years, 03 months, and 00 days."

8.  Army Regulation 635-5 (Separation Documents) established the standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time provided, in pertinent part, that Item 18 (Record of Service) would contain all service shown in items 18a through 18f, less time lost under Title 10, U.S. Code, section 972 and time lost subsequent to expiration of term of service.  
9.  The regulatory instructions for preparation of the DD Form 214 provide for entering the active duty service completed during the period covered by the 
DD Form 214 being issued.  This total is arrived at by adding 18a (date entered active duty this period) to Item 18b (prior active service) minus lost time.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions to have his records corrected to show his full length of his service and to show his pay grade was carefully considered and found to have partial merit.
2.  Evidence of record shows that the applicant was on active duty during two separate periods of service.  The applicant’s first DD Form 214 shows he served on active duty from 3 October to 23 October 1974 for a total of 21 days.  The second DD Form 214 shows he served on active duty from 23 August 1976 to
21 September 1977.  During this period of service the applicant was AWOL from
31 October 1976 through 29 August 1977.  He returned to military control on
30 August 1977.  He continued to serve until his discharge on 21 September 1977.  He served a total of 3 months and 21 days of total active service. Therefore, he is entitled to have his DD Form 214, dated 21 September 1977 corrected to show his total length of active duty service of 3 months and 21 days.

3.  There is no evidence nor did the applicant provide any evidence that shows he was discharged from Fort Sill in September 1978.  The evidence does show that the applicant was duly discharged at Fort Sill on 21 September 1977.  Therefore, there is insufficient evident to warrant an adjustment of his discharge date to reflect September 1978.

4.  There is no evidence nor did the applicant provide any evidence that shows he held any other rank/pay grade other than PV1/E-1.  Evidence of record shows the applicant enlisted in pay grade E-1 and was subsequently discharged in the same grade.  There is no evidence that shows the applicant was ever advanced beyond the grade of E-1.  Therefore, no correction to his pay grade is warranted.

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:

	a.  amending item 18b of his DD Form 214 dated 21 September 1977 to    read "00 years, 00 months, and 21 days" of prior active service;


b.  amending item 18c to read "00 years, 3 months, and 21 days"; and

	c.  amending item 18e (total service for pay) to read "00 years, 3 months and
24 days."

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 show correction of his pay grade.



      ____________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)                                         AR20080014212



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ABCMR Record of Proceedings (cont)                                         AR20080014212



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