IN THE CASE OF:
BOARD DATE: 7 April 2009
DOCKET NUMBER: AR20080018413
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 that item 12b (Separation Date This Period) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 November 1976 be corrected.
2. The applicant states, in effect, that item 12b on this DD Form 214 shows the year 1976 and it should be 1979. He contends that the DD Form 214 currently reflects that he separated from service the day before he entered active duty during his second enlistment period.
3. The applicant provides a DD Form 214 (Report of Separation from Active Duty) for the period ending 10 November 1976; a DD Form 214 for the period ending 9 November 1976; and discharge orders, dated 16 October 1979 in support of his 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 enlisted in the Regular Army on 20 December 1973 for a period of 3 years. He served as a military police and was honorably discharged on
9 November 1976 for reenlistment.
3. Item 9d (Effective Date) on the applicant's DD Form 214 for the period ending 10 November 1976 shows the entry 76 11 10" [10 November 1976].
4. The applicant's enlistment contract, dated 10 November 1976, shows he reenlisted for a period of 3 years. Item 49 (Prior Service) on this contract shows that the applicant enlisted on 20 December 1973 and was honorably discharged on 9 November 1976. He served as a military police. Discharge orders, dated 16 October 1979, show the applicant was released from active duty on
9 November 1979.
5. Item 12b on the applicant's DD Form 214 for the period ending 9 November 1976 shows the entry "76 11 09" [9 November 1976]. Item 12c (Net Active Service This Period) on this DD Form 214 shows the entry "03 00 00."
DISCUSSION AND CONCLUSIONS:
1. The entry on the applicant's enlistment contract, dated 10 November 1976, which shows he enlisted on 20 December 1973 and was honorably discharged on 9 November 1976 is accepted as sufficient evidence on which to amend item 9d on the applicant's DD Form 214 for the period ending 10 November 1976 to show he was discharged on 9 November 1976.
2. Item 12b on the applicant's DD Form 214 for the period ending 9 November 1976 is incorrect. Evidence of record shows he reenlisted on 10 November 1976 and discharge orders show he was released from active duty on 9 November 1979. In addition, this DD Form 214 shows he served 3 years of net active service. Therefore, item 12b on his DD Form 214 for the period ending
9 November 1976 should be corrected to show 9 November 1979.
BOARD VOTE:
____X__ ___X____ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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 corrected by:
a. deleting the entry in item 9d on his DD Form 214 for the period ending
10 November 1976;
b. adding the entry "76 11 09" in item 9d on this DD Form 214;
c. deleting the entry in item 12b on his DD Form 214 for the period ending
9 November 1976; and
d. adding the entry, "79 11 09" in item 12b on this DD Form 214.
_______ _ 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) AR20080018413
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20080018413
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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