IN THE CASE OF:
BOARD DATE: 4 December 2008
DOCKET NUMBER: AR20080015631
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 15 (Date Entered Active Duty This Period) of his DD Form 214 (Report of Separation from Active Duty) to show his date of entry as 23 April 1975 instead of 16 May 1975.
2. The applicant states that he enlisted in the Regular Army and took his oath of enlistment on 23 April 1975 and that his DD Form 214 shows an incorrect entry due to a clerical error. He adds that the incorrect entry date is affecting his entitlement to Department of Veterans Affairs (DVA) disability compensation.
3. The applicant provides a copy of his DD Form 214, dated 19 December 1975; a copy of his DD Form 4 (Enlistment Contract-Armed Forces of the United States), dated 23 April 1976; and a copy of his Standard Form 88 (Report of Medical Examination), dated 23 April 1975 in support of is 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 applicants records show he enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) for a period of 6 years and executed an oath of enlistment on 23 April 1975.
3. The applicants records also show that after spending 23 days in the DEP, he was discharged from the DEP on 15 May 1973 and enlisted in the Regular Army for a period of 3 years on 16 May 1975.
4. On 16 May 1975, the Armed Forces Examining and Entrance Station (AFEES), Los Angeles, California, published Orders 96-2, assigning the applicant to active duty and ordering him to proceed to the U.S. Army Reception Station at Fort Polk, Louisiana.
5. The applicants records further show he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman). The highest rank/grade he attained during his military service was private (PV2)/E-2. He was honorably discharged on 19 December 1975.
6. Item 15 of the DD Form 214 he was issued at the time of his discharge shows the entry 75 05 16, Item 18d (Prior Inactive Service) shows the entry 0 0 23, and Item 9d (Effective date) shows the entry 75 12 19.
7. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of their military service. This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training. The DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty. Chapter 2 of this regulation governs the preparation of the DD Form 214. In the version in effect at the time, Item 9d shows the Soldiers transition date, the effective date of separation, discharge, or release from active duty and Item 15 shows the date of entry on active duty. Extreme care is used when completing these blocks since post-service final pay, benefits, and retirement credit are based on this information. Item 18a (Net Active Service This Period) shows the amount of service, computed by subtracting item 15 from 9d. Any DEP time which began prior to 31 December 1984 was not creditable service for pay purposes, but was entered in item 12e (total prior inactive service).
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that the applicant enlisted in the USAR under the DEP on 23 April 1975; however, his period of time in the DEP was not active service, nor is it creditable service. He enlisted in the Regular Army and entered active duty on 16 May 1975 which is correctly shown on his DD Form 214. The DD Form 214 is a record of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training. DEP is not active duty.
2. The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits. The applicant is advised to consult with his local/regional DVA representative. Those individuals can best advise a former service member as to eligibility and/or procedures for applying for benefits.
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) AR20080015631
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ABCMR Record of Proceedings (cont) AR20080015631
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