IN THE CASE OF:	  

		BOARD DATE:	       12 March 2009

		DOCKET NUMBER:  AR20080018527 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his correct date of entry as 1 September 1978 instead of 9 November 1979.

2.  The applicant states that his DD Form 214 shows an incorrect date of entry on active duty.  

3.  The applicant provides a copy of his DD Form 214, dated, 8 August 1985; a copy of his enlistment travel order, dated 1 September 1978; a copy of his DD Form 372 (Application for Verification of Birth for Official U.S. Armed Forces Use Only), dated 30 August 1978; a copy of his DD Form 4 (Enlistment or Reenlistment Agreement), dated 1 September 1978; a copy of his DD Form 93 (Record of Emergency Data), dated 1 September 1978; a copy of his 1976 Wage and Tax Statement; and a copy of his High School Certificate, dated 24 May 1974 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 Regular Army for a period of 3 years on 1 September 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31V (Tactical Communications System Operator).  He was honorably discharged on 8 November 1979 for the purpose of immediate reenlistment.  He completed 1 year, 2 months, and 8 days of active military service during this period of enlistment; however, a DD Form 214 was not issued for this period of enlistment as there was no longer a requirement to issue one for enlisted members discharged for immediate reenlistment in the Regular Army.

3.  The applicant’s records further show he reenlisted in the Regular Army for a period of 3 years on 9 November 1979 and executed another 3-year reenlistment on 9 August 1982.  He completed various assignments, including an overseas tour in Germany from on or about 11 July 1979 to on or about 28 January 1982, attained the rank/grade of sergeant (SGT)/E-5, and was honorably discharged on 8 August 1985 by reason of expiration term of service (ETS).  The DD Form 214 he was issued shows the following entries:

	a.  item 12a (Date Entered Active Duty (AD) This Period) shows the entry
“79  11  09”;

	b.  item 12b (Separation Date This Period) shows the entry “85  08  08”;

	c.  item 12c (Net Active Service This Period) shows the entry “05  09  00”; and

	d.  item 12d (Total Prior Active Service) shows the entry “01  02  08.”

4.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for the preparation and issuance of separation documents, including the DD Form 214.  In October 1979, the regulation no longer required that a DD Form 214 be issued each time an enlisted Soldier was discharged for the purpose of immediate reenlistment.  At the time, the regulation provided that, when a DD Form 214 was issued, item 12a would reflect the first day of the last immediate reenlistment for which a DD Form 214 was not issued.  The regulation did, however, provide for the issuance of a DD Form 214 when enlisted Soldiers became commissioned or warrant officers, and who had their enlisted status terminated.

5.  Chapter 2 of Army Regulation 635-5 currently in effect states, in pertinent part, that:

	a.  item 12 shows the Record of Service.  Extreme care is used when completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information.  A breakdown of entries in Item 12 is as follows:

		(1)  item 12a shows the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued (emphasis added);

		(2)  item 12b shows the Soldier’s transition date.  This date may not be the contractual date if a Soldier is separated early, voluntarily extends, or is extended for make-up of lost time, or retained on active duty for the convenience of the Government;

		(3)  item 12c shows the amount of service this period, computed by subtracting item 12a from 12b.  Lost time under Title 10, U.S. Code, section 972 and non-creditable time after ETS, if any, are deducted and such time will be identified in block 18; and

		(4)  item 12d, obtained from previously issued DD Forms 214, shows the total amount of prior active military service less lost time, if any.  If not applicable, enter “00  00  00.”

	b.  Item 18 (Remarks) is used for required entries for which a separate item is not available on the form.  One of these entries is a list of enlistment periods for which a DD Form 214 was not issued.  For example "Immediate Reenlistment This Period YYMMDD-YYMMDD." 

DISCUSSION AND CONCLUSIONS:

1.  There is no indication the applicant was issued a DD Form 214 prior to 8 August 1985.  In accordance with the regulation in effect at the time, this DD Form 214 correctly began with 9 November 1979 (i.e., his last immediate reenlistment for which a DD Form 214 was not issued).

2.  However, in the interest of clarity and as an exception to the policy in effect at the time (and in accordance with current policy), it would be appropriate to correct the applicant's 8 August 1985 DD Form 214 to reflect his initial entry on active duty on 1 September 1978 vice commencing it on the date of his last reenlistment.  It would then be appropriate to also correct item 12c to capture the applicant's total period of active Federal service between 1 September 1978 and 8 August 1985, a period of 6 years, 11 months, and 8 days.  Item 12d would then be corrected to reflect the no prior active service since it is being counted in item 12c.

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 "79  11  09"  from item 12a of his DD Form 214 and adding the entry "78  09  01";

	b.  deleting the entry "05  09  00" from item 12c of his DD Form 214 and adding the entry "06  11  08";

	c.  deleting the entry "01  02  08" from item 12d of his DD Form 214 and adding the entry "00  00  00"; and

	d.  deleting the entry "Immediate Reenlistment This Period 791109-820808" from item 18 of his DD Form 214 and adding the entry "Immediate Reenlistment This Period 791109-820808 and 820809-850808."


															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)                                         AR20080018527



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ABCMR Record of Proceedings (cont)                                         AR20080018527



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