IN THE CASE OF:	

		BOARD DATE:	 28 April 2009 

		DOCKET NUMBER:  AR20080019242 


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 his DD Forms 214 (Report of Separation from Active Duty) be changed to show the dates "10 Nov 1971 to 6 April 1972" and from "6 April 1972 to 23 May 1977." 

2.  The applicant states, in effect, that his service record should start on 10 November 1971 and finish on 23 May 1977 and that he wants proof of his period of service in late 1971 to 1972. 

3.  The applicant does not provide any supporting documentation 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 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.  On 10 November 1971, records show that the appropriate authority determined at a pre-induction examination that the applicant was found acceptable for induction into the Armed Forces.  Accordingly, a DD Form 47 (Record of Induction) was prepared.  

3.  On 6 April 1972, records show that the appropriate authority determined through physical examination that the applicant was found acceptable for induction into the Armed Forces and that he was qualified for induction into the Army of the United States at Fort Ord, California.  

4.  On 6 April 1972, the applicant authenticated in his own hand USAREC Form 180-R (Acknowledgement of Service Obligation) whereby he acknowledged that he was inducted into the Army of the United States on 6 April 1972 for a 2-year active duty obligation. 

5.  Armed Forces Examining and Entrance Station, Los Angeles, California Special Orders Number 70, dated 6 April 1972, inducted the applicant into the Army of the United States in the grade of private (PV1)/pay grade E-1 with an active duty commitment of 2 years.  This order shows the effective date of induction was 6 April 1972.  Accordingly, the applicant entered active duty and completed basic and advanced military training and was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).

6.  On 5 April 1974, the applicant was honorably released from active duty due to completion of his active duty service obligation.  Records show he was transferred in the U.S. Reserve (UAR) Control Group (Reinforcement) to complete his military statutory service obligation.  He was issued a DD Form 214 which shows he was inducted into the Army of the United States on 6 April 1972 and released from active duty on 5 April 1974.  This same DD Form 214 shows the applicant completed 2 years of active service and that he had neither prior active nor inactive service.  Records show the highest rank/grade the applicant attained during this enlistment period was specialist (SP4)/E-4.  Records further show he authenticated his DD Form 214 in his own hand.

7.  Records show the applicant enlisted in the Regular Army on 24 May 1974 for a 3-year period.  The applicant's DD Form 4 (Enlistment Contract, Armed Forces of the United States) shows he had honorable prior service in the U. S. Army from 6 April 1972 to 5 April 1974 and that on his release date he held the rank/grade of SP4/E-4.  



8.  On 23 May 1977, the applicant was honorably released from active duty at Fort Gordon, Georgia and transferred to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation.  He was issued a DD Form 214 which shows his highest rank attained during this period of service was SP4/E-4.  This same DD Form 214 further shows he had 2 years of prior active service and that his total active service was 5 years.  His record of service shows he had 1 month and 19 days of inactive service [USAR service from
6 April 1974 through 23 May 1974] and that his total service for pay was 5 years, 1 month, and 19 days.

9.  On 5 April 1978, the applicant was discharged from the USAR (Standby Reserve) per the directive of the Office of The Adjutant General, Army Reserve Components Personnel and Administration Center, St. Louis, Missouri Orders 03-1016821, dated 28 March 1978.  These orders show the applicant served in the Standby Reserve from 31 August 1977 to 5 April 1978. 

10.  Army Regulation 635-5 (Separation Documents), then in effect, provided in pertinent part that the purpose of the separation document was to provide the Soldier with documentary evidence of his military service.  In the preparation of the separation document all available service records would be used as a basis for preparing the Soldier's DD Form 214, including DA Form 20 (Enlisted Qualification Record), DA Form 2-1 (Personnel Qualification Record), enlistment contracts, and military personnel orders.

11.  Army Regulation 635-5, then in effect, provided, in pertinent part, that the date entered on active duty or date of enlistment or reenlistment would be entered on DD Form 214 in Item 15 (Date Entered Active Duty).  This regulation also provided guidance that the date of separation would be entered in Item 9d (Effective Date [of Separation]).  

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation document does not properly show his complete period of service from 10 November 1971 to 23 May 1977.  


2.  Records show an appropriate military authority initiated the applicant's induction on 10 November 1971.  However, the actual review, completion, and qualification for induction as determined by the Armed Forces Examining and Entrance Station, Los Angeles was in fact completed and executed on 6 April 
1972.  

3.  In view of the foregoing, and without the applicant showing that his record of service or his DD Forms 214 issued on 5 April 1974 and on 24 May 1977 are in error, there is no evidence of an error or injustice.  Therefore, 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.



      _________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)                                         AR20080019242



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ABCMR Record of Proceedings (cont)                                         AR20080019242



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