IN THE CASE OF:	  

		BOARD DATE:	        09 APRIL 2009

		DOCKET NUMBER:  AR20080016583 


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 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show that he entered active duty on 20 January 1971 instead of 20 January 1973.  

2.  The applicant states that item 17c (Date of Entry) of his DD Form 214 incorrectly shows that he entered active duty on 20 January 1973, and that his military records show that he actually entered active duty on 20 January 1971.  He also contends that item 22b (Total Active Service) of his DD Form 214 which shows that he completed 2 years, 3 months, and 6 days of total active service is consistent with his date of entry onto active duty on 20 January 1971, and that his discharge date of 19 January 1977 is also consistent with his 6-year commitment which started on 20 January 1971.

3.  The applicant provides his DD Form 214; a Standard Form 88 (Report of Medical Examination), dated 27 October 1970; a Standard Form 601 (Health Record – Immunization Record); orders, dated 1 May 1974, which ordered him to annual training on 15 June 1974; and orders, dated 22 December 1976, which discharged him effective 19 January 1977 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 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 that he was inducted into the Army of the United States (AUS) on 20 January 1971.  He completed initial entry training and was awarded military occupational specialty (MSO) 11C (Infantry Indirect Fire Crewman).  After completing the first two phases of the Noncommissioned Officer (NCO) Candidate Course at Fort Benning, Georgia, he departed for a tour in Korea on 23 March 1972.  After completing the NCO Course in Korea, he served with Headquarters and Headquarters Company, 2nd Brigade, 2nd Infantry Division.  He returned to the continental United States on 25 April 1973 and was honorably released from active duty on that date and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  On 19 January 1977, he was honorably discharged from the USAR.

3.  Item 17c of his DD Form 214 shows that he entered active duty on 20 January 1973.  However, his DD Form 47 (Record of Induction) and USAREC Form
180-R (Acknowledgement of Service Obligation (6-Year Acknowledgement)) clearly shows that he was inducted into the AUS on 20 January 1971.  Item 4 (Department, Component, and Branch or Class) of his DD Form 214 shows that he was a member of the USAR.  Item 22a(2) (Other Service) shows that he had 2 years of other service prior to 20 January 1973.  Additionally, item 22c (Foreign and/or Sea Service) of this document shows that he served 1 year, 1 month, and 2 days of foreign and/or sea service.  Item 17 (Current Active Service Other Than by Induction) has an entry of "NA," for not applicable.

4.  On 17 March 2009, the analyst for these Proceedings telephonically contacted the applicant to ascertain if he was issued a DD Form 214 for his active duty service from 20 January 1971 to 19 January 1973 or if he ever enlisted in the USAR.  The applicant responded by stating that the DD Form 214 that was issued to him on 25 April 1973 is the only DD Form 214 that he was ever issued, and that he never enlisted in the USAR.  He did, however, mention that he extended for 3 months while in Korea.

5.  Army Regulation 635-5 (Separation Documents) provides the regulatory guidance on preparing the DD Form 214.  The version in effect at the time of the applicant's release from active duty on 25 April 1973, provided, in pertinent part, that for item 22c, that the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 would be entered.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show that he entered active duty on 20 January 1971 instead of 20 January 1973.  

2.  The applicant clarified that he was never issued another DD Form 214 for his active duty service from 20 January 1971 to 19 January 1973, and that while he extended in Korea for 3 months, he states he never enlisted in the USAR.  There is also no evidence in his military records that he was issued a DD Form 214 for the period 20 January 1971 to 19 January 1973, and there is no enlistment contract showing that he enlisted in the USAR on 20 January 1973.  Additionally, the fact that item 22c shows that he served 1 year, 1 month, and 2 days of foreign and/or sea service is not a proper entry for a DD Form 214 which only covers a period of 3 months and 6 days, as regulatory guidance at the time provided that only the total active duty outside the continental limits of the United States for the period covered by the DD Form 214 (emphasis added) would be entered.  Further, the fact that item 17 of his DD Form 214 has an entry of "NA" suggests that he never enlisted and was only inducted into the AUS on 
20 January 1971.

3.  It is clear that the applicant's DD Form 214 is fraught with administrative errors which could pose problems for the applicant if he were required to provide a copy to another Government agency.  Regardless of the reasons for the incompatible entries on this document, the applicant was in fact inducted into the AUS on 20 January 1971.  As a result, it would be appropriate at this time to correct his DD Form 214 in a uniform manner which is void of conflicting entries.

BOARD VOTE:

___X_____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be correction by:

	a.  deleting from item 4 of the applicant's DD Form 214 the entry "USAR" and replacing it with the entry "AUS";

	b.  deleting from item 10c (Date Inducted) of the applicant's DD Form 214 the entry "NA" and replacing it with the entry "20 JAN 71;

	c.  deleting from item 17c of the applicant's DD Form 214 the entry "20 JAN 73" and replacing it with the entry "NA";

	d.  deleting from item 22a(1) (Net Service This Period) of the applicant's DD Form 214 the entry "0 years, 3 months, and 6 days" and replacing it with the entry "2 years, 3 months, and 6 days"; and 

	e.  deleting from item 22a(2) the entry "2 years, 0 months, and 0 days" and replacing it with the entry "0 years, 0 months, and 0 days."

2.  The Board wants to thank the applicant for the sacrifices he made in service to the United States during his military service.  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)                                         AR20080016583



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ABCMR Record of Proceedings (cont)                                         AR20080016583



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