IN THE CASE OF:
BOARD DATE: 2 April 2009
DOCKET NUMBER: AR20080018710
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 item 15 (Date Entered Active Duty This Period) on his DD Form 214 (Report of Separation from Active Duty) for the period ending 28 June 1974 be corrected to show he entered active duty on
28 October 1970.
2. The applicant states that he enlisted in the Regular Army on 28 October 1970 for a period of 2 years, that he reenlisted on 28 June 1971 for a period of 3 years, and that his DD Form 214 for the period ending 28 June 1974 does not show his eight months of prior active service from 28 October 1970 to 27 June 1971.
3. The applicant provides special orders, dated 30 June 1971; a Department of Veterans Affairs Rating Decision, dated 24 January 2007; a DD Form 214 for the period ending 28 June 1974; National Guard Bureau Forms 22 (Report of Separation and Record of Service) for the periods ending 20 May 1987,
12 December 1989, and 26 September 2005; a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 September 2005; an Army National Guard Retirement Points History Statement; an award certificate and orders for the Army Commendation Medal with "V" Device; and a diploma 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 applicants complete military records are not available to the Board. The applicant's Army National Guard Retirement Points History Statement shows he was inducted on 28 October 1970 and he enlisted in the Regular Army on
29 June 1971. On 28 June 1974, he was released from active duty for enlistment in the Army National Guard.
3. The available records do not contain a DD Form 214 covering the period
28 October 1970 through 28 June 1971.
4. Item 15 on the applicant's DD Form 214 for the period ending 28 June 1974 shows the entry, "71 06 29" [29 June 1971]. Item 18(b) (Prior Active Service) on this DD Form 214 shows he served 8 months and 1 day of prior active service.
5. The applicant's Army National Guard enlistment contract, dated 29 June 1974, shows that he had prior service in the U.S. Army from 28 October 1970 to
28 June 1974.
6. Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. The regulation states, in pertinent part, that the purpose of a separation document is to provide the individual with documentary evidence of his/her military service. It is a vital record for interested Government agencies which assist the veteran in obtaining the rights and benefits to which he/she is entitled. Therefore, it is important that information entered is complete and accurate. The regulation, in effect at the time, states that for Item 15 enter the beginning date of the continuous period of AD for issuance of this DD Form 214, for which a DD Form 214 was not previously issued (emphasis added). Enter the date in order shown on the DD Form 214, using all numerals; e.g., 73 for year, 01 for January. For item 18 (Record of Service), all service shown in 18(a) through (f) will be less time lost under Title 10, U.S. Code, section 972 and time lost subsequent to expiration of term of service. For 18(b) (Prior Active Service), from the previously issued DD Forms 214, enter the total amount of prior active military service less lost time, if any.
DISCUSSION AND CONCLUSIONS:
It appears the applicant was inducted on 28 October 1970 and was discharged on 28 June 1971 for enlistment in the Regular Army. Although there is no DD Form 214 for this period on file in his Official Military Personnel File (OMPF), administrative regularity is presumed. The applicant's period of prior active service is properly reflected in item 18(b) on his DD Form 214 for the period ending 28 June 1974, and has been appropriately carried forward on his NGB Forms 22 and DD Form 214 for the period ending 26 September 2005 as
3 years, 8 months, and 1 day of prior active Federal service/total prior active service, respectively. Therefore, there is no basis for granting the applicants request to amend item 15 on his DD Form 214 for the period ending 28 June 1974.
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) AR20080018710
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ABCMR Record of Proceedings (cont) AR20080018710
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