IN THE CASE OF:	  

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080016201 


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, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to include the time she spent in the Delayed Entry Program (DEP).  The applicant also requests reconsideration of her earlier request to change the narrative reason of her honorable discharge for physical disability with severance pay to medical retirement by reason of permanent physical disability.

2.  The applicant states, in effect, that the time she spent in the DEP during the period of December 1976 through March 1977 was not included in her creditable service time.  The applicant further states that she believed she was being processed for medical retirement and that her separation was changed to a  medical discharge without her knowledge.  The applicant continues that she was unaware of the fact that she could request correction of these errors until she attended a veterans conference earlier this year.

3.  The applicant provides copies of her DA Form 2-1 (Personnel Qualification Record) and DD Form 214 as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (10 USC), 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.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  In ABCMR Docket Number AC92-08634, dated 22 December 1993, the ABCMR denied the applicant's request to change her discharge for physical disability with severance pay to a medical retirement.  Her current request for reconsideration was not received within one year of the ABCMR's original decision.  As a result, her request for reconsideration does not meet the criteria outlined above, and will not be discussed further in this Record of Proceedings.  The ABCMR will not consider any further requests for reconsideration of this matter.  However, the applicant has the option to seek relief in a court of appropriate jurisdiction.

3.  NGB Form 22 (Departments of the Army and the Air Force, National Guard Bureau, Report of Separation and Record of Service), dated 30 December 1976, shows the applicant enlisted in the Oregon Army National Guard (ARNG) on 3 February 1976.  She attended and completed Initial Active Duty Training during the period 22 February 1976 through 8 May 1976.  Upon completion of her training, the applicant was awarded military occupational specialty (MOS) 75C (Personnel Management Specialist).  On 30 December 1976, the applicant was separated from the Oregon ARNG for the purpose of enlisting in the Regular Army.  The applicant was credited with completing 10 months and 28 days of net service, including 8 months and 11 days of inactive service and 2 months and 17 days of active service.  At the time of her separation, the applicant held the rank of private (PV2)/pay grade E-2.  

4.  A DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States) shows that on 31 December 1976, the applicant enlisted in the United States Army Reserve (USAR) for the purpose of participating in the DEP.
DD Form 4c (Enlistment or Reenlistment Agreement (Continuation Sheet)), dated 28 March 1977, shows that on 27 March 1977 the applicant was discharged from the USAR DEP after completing 2 months and 27 days of inactive service.  This form also shows that on 28 March 2007, the applicant enlisted in the Regular Army for a period of four years.

5.  The applicant's record shows she attended advanced individual training and was awarded MOS 94B (Food Service Specialist).  She remained on active duty through a series of reenlistments and was ultimately promoted to the rank of staff sergeant (SSG)/pay grade E-6.

6.  The applicant provides a copy of her DA Form 2-1.  Item 35 (Current and Previous Assignments) of this form shows that she served in the ARNG during the period of February 1976 through December of 1976 and in the USAR DEP during the period of December 1976 through March 1977.

7.  Headquarters, 7th Infantry Division (Light) and Fort Ord, Fort Ord, California, Orders 154-325, dated 15 August 1990, assigned the applicant to the Transition Point for transition processing with a discharge date of 29 August 1990.  These orders also show the applicant was authorized severance pay in the grade of SSG with a disability rating of 10 percent.  The orders further show the applicant was credited with 13 years, 7 months, and 19 days of active federal service and 14 years, 6 months, and 27 days for pay.

8.  The applicant's DD Form 214 shows she entered active duty on 28 March 1977 and served a total of 13 years, 5 months, and 2 days prior to being discharged with an honorable characterization of service on 29 August 1990 due to physical disability with severance pay in the amount of $36,417.60.  This form also shows the applicant had 2 months and 17 days of prior active service, bringing her to a combined total of 13 years, 7 months, and 19 days of active federal service.  This form further shows the applicant completed 11 months and 9 days of prior inactive service.

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated, in pertinent part, that the DD Form 214 would be prepared for all enlisted personnel ordered or called to active duty at the time of their release from active duty or discharge.  The date the Soldier entered active duty status would be entered in Item 12a.  The last date of active duty would be entered in Item 12b.  The total active service completed between the dates of the current tour of duty would be entered in Item 12c.  All prior active service would be entered in Item 12d.  This would include any period of active service in the USAR or ARNG.  All prior inactive service would be entered in Item 12e.  This would include any period of active service in the USAR or ARNG.  DEP time which began before 1 January 1985 was creditable for pay purposes and would be included in the time entered in Item 12e.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her DD Form 214 should be corrected to include the time she spent in the DEP was carefully considered and determined to lack merit.

2.  The available evidence shows the applicant completed 8 months and 11 days of inactive service while enlisted in the ARNG.  The evidence also shows the applicant completed 2 months and 28 days of inactive service while enlisted in the USAR DEP.  When these two periods of inactive service are combined, it yields a total of 11 months and 9 days of total prior inactive service.  In accordance with the provisions of Army Regulation 635-5, this combined total was entered in Item 12e of the applicant's DD Form 214.  In view of these circumstances, the applicant's DEP time is properly annotated on her DD Form 214.  Therefore, she is not entitled to correction of Item 12e of her DD Form 214. The applicant has provided no evidence to support her contention that this entry is incorrect and should reflect additional time. 

3.  In accordance with regulatory guidance, the period of time the applicant served in the DEP was creditable service for pay purposes only.  Therefore, she is not entitled to a correction of her DD Form 214 to show she entered active duty or was released from active duty on any other dates.  Neither the evidence submitted with the application nor the evidence of record supports her request or indicates that her DD Form 214 is in error or unjust.  In view of the foregoing, there is no basis for granting the applicant's request.

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.

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.



      _______ _   __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)                                         AR20080016201



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ABCMR Record of Proceedings (cont)                                         AR20080016201



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