IN THE CASE OF:	  

		BOARD DATE:	        28 APRIL 2009

		DOCKET NUMBER:  AR20080019163 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 6 September 1963 to show his date of entry as 21 January 1961.

2.  The applicant states that the copy of his DA Form 261 (Request for Records and Official Statement of Service from The Adjutant General) clearly reflects that he entered active duty on 21 January 1961.

3.  The applicant provides in support of his application a copy of his DA Form 261, dated 3 June 1963; a copy of his Honorable Discharge Certificate, dated 18 August 1961; a copy of his DD Form 214 for the period ending 6 September 1963; a copy of Special Orders Number 208, dated 26 August 1963, releasing him from assignment and duty; and two pages of medical notes. 

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 DD Form 4 (Enlistment Record - Armed Forces of the United States) shows that on 23 January 1961, the applicant enlisted in the Regular Army (RA) in Sioux Falls, South Dakota, for 3 years, in the pay grade of E-1.  He successfully completed his training as a light weapons infantryman.

3.  On 18 August 1961, the applicant was honorably discharged for the purpose of immediate reenlistment.  At the time of his discharge during this period of service from 23 January 1961 through 18 August 1961 he completed 6 months and 26 days of creditable active service.  He was issued a DD Form 214 for this period of service.

4.  The applicant immediately reenlisted in the RA on 19 August 1961 for a period of 3 years.  After completing 1 year, 1 month, and 7 days of net service this period, he was honorably retired on 6 September 1963 by reason of temporary disability.  At the time of his retirement, the applicant was furnished another DD Form 214 to reflect his current period of service.  It also reflects his
6 months and 26 days of other service [relating to his prior active service] covered by his previous DD Form 214.

5.  The DA Form 261 that the applicant submitted in support of his application is dated 3 June 1963 and it shows his date of enlistment in the RA as 21 January 1961.  The form was prepared by a medical personnel officer and in the remarks section of the form it reads "Above information has not been verified by service record of enlisted member."

6.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of release from active duty (REFRAD) or discharge.  It further states that for item 19c (Date of Entry), enter 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).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 for the period ending 6 September 1963 should be corrected to show his date of entry as 21 January 1961.
2.  The applicant's DD Form 4 shows that he initially enlisted in the RA on 23 January 1961.  The applicant was subsequently discharged on 18 August 1961 for the purpose of immediate reenlistment.  As a result, the applicant was furnished a DD Form 214 for the period ending 18 August 1961 that properly reflects his period of service from 23 January 1961 through 18 August 1961.  

3.  The applicant provided a DD Form 214 that reflects his date of entry in the RA as 19 August 1961.  This DD Form 214 was furnished to the applicant to reflect his second period of service which terminated on 6 September 1963.  This DD Form 214 shows, in effect, that he entered active service this period on
19 August 1961 and was released from active duty on 6 September 1963 and placed on the Temporary Disability Retired List.  The DD Form 214 for this period also properly reflects this period of service and is signed by the applicant.

4.  The applicant served during two periods of active duty serve and was properly issued two DD Forms 214, each reflecting the specific period of service completed.  Therefore, the DD Forms 214 issued to the applicant are correct as constituted.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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.



      _________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)                                         AR20080019163



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ABCMR Record of Proceedings (cont)                                         AR20080019163



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