IN THE CASE OF:
BOARD DATE: 28 April 2009
DOCKET NUMBER: AR20080019362
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 12a (Date Entered AD [Active Duty] This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 October 1980 be corrected to show he entered active duty on 26 December 1974.
2. The applicant states that his date of enlistment is incorrect on this DD Form 214. He contends that he entered the Delayed Entry Program in July 1974 and that he enlisted in the Armed Forces on 26 December 1974.
3. The applicant provides copies of DD Forms 214 for the periods ending
3 October 1980 and 3 June 1985 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 U.S. Army Reserve under the Delayed Entry Program on 10 July 1974. His enlistment contract, dated 27 December 1974, shows he enlisted in the Regular Army on 27 December 1974 for a period of
3 years. On 5 October 1977, he was honorably discharged for immediate reenlistment.
3. Item 15 (Date Entered Active Duty This Period) of the applicant's DD Form 214 (Report of Separation from Active Duty) for the period ending
5 October 1977 shows the entry, "74 12 24" [24 December 1974]. Item
18d (Prior Inactive Service) on this DD Form 214 shows he had 5 months and
17 days of prior inactive service.
4. On 6 October 1977, the applicant reenlisted. He was honorably discharged on 3 October 1980.
5. Item 12a of the applicant's DD Form 214 for the period ending 3 October 1980 shows the entry, "77 10 06" [6 October 1977].
6. After a break in service, the applicant enlisted in the Regular Army on 4 June 1981. On 3 June 1985, he was honorably discharged.
7. 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 states that for item 12a, 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). It also states that for item 12d (Total Prior Active Duty), from previously issued DD Forms 214, enter the total amount of prior active military service less lost time, if any.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record supports the applicant's contention that he entered the Delayed Entry Program in July 1974. His period of prior active service is properly reflected in item 18d of his DD Form 214 for the period ending 5 October 1977.
2. Although the applicant contends that he enlisted in the Regular Army on
26 December 1974, his enlistment contract shows he enlisted in the Regular Army on 27 December 1974. Item 15 of his DD Form 214 for the period ending
5 October 1977 incorrectly shows he enlisted in the Regular Army on
24 December 1974. Therefore, item 15 of this DD Form 214 should be corrected to show he entered active duty on 27 December 1974.
3. Evidence of record shows the applicant reenlisted in the Regular Army on
6 October 1977, which is properly reflected in item 12a on his DD Form 214 for the period ending 3 October 1980. Therefore, there is no basis for granting the applicants request to amend item 12a of his DD Form 214 for the period ending 3 October 1980.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
__X____ __X_____ ___X____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 15 of his DD Form 214 for the period ending
5 October 1977; and
b. adding the entry "74 12 27" in item 15 of this DD Form 214.
2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to amending item 12a of his DD Form 214 for the period ending 3 October 1980.
_______ _ 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) AR20080019362
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