IN THE CASE OF:
BOARD DATE: 09 APRIL 2009
DOCKET NUMBER: AR20080015530
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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued on 30 November 1991, which will simply be referred to as his DD Form 214 or his DD Form 214 issued on
30 November 1991 throughout the remainder of these proceedings, be corrected to show that he entered active duty (AD) on 26 August 1971.
2. The applicant states that his DD Form 214 reflects 13 years and 9 months of AD service instead of his correct and full service of 20 years and 3 months of AD service.
3. The applicant provides his DD Form 214 and orders, dated 27 August 1991, which released him from AD on 30 November 1991 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 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. The applicant's military records show that he enlisted in the Regular Army on 26 August 1971, and served continuously on AD until he was retired on
30 November 1991. Item 12a (Date Entered AD This Period) of his DD Form 214 shows that the beginning period covered by this document was 1 March 1978. Item 12d (Total Prior Active Service) of this document also shows that the applicant had 6 years, 6 months, and 5 days of AD service prior to 1 March 1978, which coincides with his initial date of entry onto AD of 26 August 1971.
3. Army Regulation 635-5 (Separation Documents), in effect at the time, provided guidance on the issuance and preparation of the DD Form 214. It provided, in pertinent part, that for item 12a, the beginning date of the continuous period of AD for issuance of the DD Form 214, for which a DD Form 214 was not previously issued, would be entered.
4. 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 his DD Form 214 should be corrected to show that he entered AD on 26 August 1971.
2. While it is clear that the applicant originally entered AD on 26 August 1971, the fact that his DD Form 214 issued on 30 November 1991 had a beginning period of 1 March 1978, and the fact that item 12d of this document reflects that he had 6 years, 6 months, and 5 days of prior active service prior to 1 March 1978, indicates that the applicant was issued a separate DD Form 214 for his AD service from 26 August 1971 to 28 February 1978. In view of the foregoing, and based upon his DD Form 214 cumulatively showing that he completed 20 years, 3 months, and 5 days of AD service, there is no basis for correcting his DD Form 214 to show that he entered AD on 26 August 1971.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ___X_____ __X______ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States throughout his military career. The applicant and all Americans should be justifiably proud of his honorable service in arms.
_______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) AR20080015530
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ABCMR Record of Proceedings (cont) AR20080015530
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