IN THE CASE OF:	

		BOARD DATE:	  19 February 2009

		DOCKET NUMBER:  AR20080017161 


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 the Reserve obligation termination date shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the same date shown on his discharge orders from the U.S. Army Reserve (USAR).

2.  The applicant states that his DD Form 214 shows a Reserve obligation termination date that is 6 months and 3 days earlier than the date shown on his discharge orders published by the U.S. Army Reserve Personnel Command, St. Louis, Missouri, on 25 May 1993.

3.  The applicant provides a copy of his DD Form 214, dated 21 May 1985; a copy of Orders D-05-343369, issued by the U.S. Army Reserve Personnel Command, St. Louis, on 25 May 1993; a copy of his DD Form 4 (Enlistment/
Reenlistment Document), dated 23 November 1984; and a copy of his DA Form 31 (Request and Authority for Leave), dated 23 July 1985, in support of his request.

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 records show he enlisted in the USAR under the Delayed Entry Program (DEP) on 23 November 1984.  He acknowledged that he understood that his enlistment in the USAR obligated him to a total of 8 years in the Armed Forces of the United States including service in the Ready Reserve and that fulfillment of this obligation begins on the date he enlisted in the DEP.  He further volunteered to serve on active duty for 4 years (but not less than 2 years).

3.  The applicant's records also show that he remained in the DEP for a period of 5 months and 28 days before he was discharged from the DEP on 20 May 1985 and subsequently enlisted in the Regular Army for a period of 3 years on 21 May 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty 98G (Electronic Warfare/Signal Intelligence Voice Interceptor).  He attained the rank of specialist four/E-4 and was honorably separated on 19 May 1988.

4.  Upon separation from the Regular Army, the applicant was transferred to the 362nd Military Intelligence Detachment, Fort Meade, Maryland.  He was also reassigned at a later date to the USAR Control Group (Reinforcement).

5.  The applicant's record is void of any enlistment and/or reenlistment contracts in the USAR subsequent to his separation from active duty.

6.  The DD Form 214 he was issued on 19 May 2005 shows the following entries:

	a.  item 12a (Date Entered This Period) contains the entry "85  05  21," indicating he entered active duty on this date;

	b.  item 12b (Separation date This Period) contains the entry "88  05  19," indication he was separated from active duty on this date;

	c.  item 12c (Net Active Service This Period) contains the entry "2  11  29" indicating he completed 2 years, 11 months and 29 days of active service during the period covered by the DD Form 214;

	d.  item 12e (Total Prior Inactive Duty) contains the entry "0  5  28" indicating he completed 5 months and 28 days of inactive service (i.e., in the DEP); and
	e.  item 12i (Reserve Obligation Termination Date) contains the entry "92  11  22."

7.  On 25 May 1993, the U.S. Army Reserve Personnel Center, St. Louis, published Orders D-05-343369 honorably discharging the applicant from the USAR effective 25 May 1993.

8.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that item 6 shows the Soldier's Reserve obligation termination date.  This is the completion date of the statutory military service obligation (MSO) incurred by a Soldier on initial enlistment or appointment in the Armed Forces.  Department of Defense policy requires a Soldier with no previous military service who enlisted or was appointed on or after 1 June 1984 to serve a period of 8 years.  The MSO starts on the date of initial enlistment or appointment in the Regular Army, Army National Guard, or the USAR to include the DEP.  DEP time is credited in computing this date.

9.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard and the USAR.  Chapter 4 of this regulation describes the expiration of service obligation.  Paragraph 4-3 states that a Soldier may not be held in the Army beyond the normal expiration of service obligation unless the service obligation is extended by law or the provisions of paragraph 2-15 of this regulation apply.  When through administrative error a Soldier is not discharged on the actual date of completion of term of enlistment, reenlistment, or date of completion of statutorily obligated service, or as provided in paragraph 2-15, a remark will be included in the "Remarks" section of the Soldier’s DA Form 2-1 (Enlisted Qualification Record) as follows:  "Retained beyond normal discharge date for the convenience of the Government."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant enlisted in the DEP on 23 November 1984.  He completed 5 months and 28 days of inactive service in the DEP and subsequently enlisted in the Regular Army on 21 May 1985.  Since he enlisted on or after 1 June 1984, he incurred an 8-year MSO.  Periods of service in the DEP count toward a Soldier's MSO but not toward pay.  Therefore, the termination date of the applicant's military service was 8 years from the date he enlisted in the DEP or 22 November 1992, which is correctly shown on his DD Form 214.

2.  With respect to the applicant's discharge order that shows he was discharged on 25 May 1993 vice 22 November 1992, this was clearly an administrative error. Nevertheless, Army Regulation 135-178 states that when through administrative error a Soldier is not discharged on the actual date of completion of statutorily obligated service, a remark is entered in the "Remarks" section of the Soldier’s DA Form 2-1 to indicate that the Soldier was retained beyond normal discharge date for the convenience of the Government.  Therefore, no corrective action is required with respect to his discharge order.

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)                                         AR20080017161



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ABCMR Record of Proceedings (cont)                                         AR20080017161



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