IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20080019390 


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 his date of entry on active duty (AD) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 24 June 2005 be corrected and that his net service be recomputed.

2.  The applicant states he entered AD in the Army on 18 February 2003 instead of 26 May 2003 currently shown on his DD Form 214.  He states that due to this error his net active service is also computed in error.  He states that item 11 (Primary Specialty) of his DD Form 214 shows that he served 2 years and 4 months in the military occupational specialty (MOS) of 11B (Infantryman).

3.  The applicant provides, in support of his application, his DD Form 214, his enlistment contract, and his Enlisted Record Brief.

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.  Section F (Discharge from Delayed Entry/Enlistment Program) of the applicant's DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows he enlisted in the Regular Army on 18 February 2003 for a period of 3 years.

3.  A DD Form 458 (Charge Sheet) in the applicant's official military personnel file (OMPF) shows he was charged with being absent without leave during the period from 26 July 2004 to 25 August 2004.  The final disposition of this charge is not contained in his OMPF.

4.  On 24 June 2005, the applicant was discharged by reason of misconduct.  He had completed 2 years, 4 months, and 7 days of active service.  He had 3 months and 9 days of time lost.

5.  Item 11 (Primary Specialty) of the applicant's DD Form 214 indicates he served in the MOS of 11B for 2 years and 4 months.

6.  Item 12a (Date Entered AD This Period) of the applicant's DD Form 214 contains the entry "2003  05  26" (26 May 2003).

7.  Item 12b (Separation Date This Period) of the applicant's DD Form 214 contains the entry "2005  06  24" (24 June 2005).

8.  Item 12c (Net Active Service This Period) of the applicant's DD Form 214 contains the entry "0001  09  17" (1 year, 9 months, and 17 days).

9.  Item 29 (Dates of Time Lost during This Period) of the applicant's DD Form 214 indicates he had 3 months and 9 days of time lost.

10.  Army Regulation 635-5 (Separation Documents) established the standardized policy for preparing and distributing the DD Form 214.  The regulation provided, in pertinent part, that the beginning date of the continuous period of active duty for which the DD Form 214 is being issued be entered in item 12a of the DD Form 214.  This regulation also provided that the date of separation be entered in item 12b and that the net service for the period shown would be computed by subtracting item 12a from item 12b and then deducting any lost time and non-creditable service after the Soldier's expiration of term of service.

11.  Army Regulation 635-5 provides, in pertinent part, for the entry of the titles of all MOSs served in for at least 1 year in item 11 of the DD Form 214 and includes for each MOS the number of years and months served.  For time determination, 16 days or more count as 1 month.  Time spent in basic training and advanced individual training is not counted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's enlistment contract shows the applicant entered active duty on 18 February 2003.  Therefore, the entry in item 12a of the applicant's DD Form 214 should read "2003  02  18" instead of "2003  05  26."

2.  Re-computation of the applicant's net service using the corrected date in item 12a and subtracting his 3 months and 9 days of time lost shows his net active service as 2 years and 29 days.  Therefore, item 12c should be corrected to show "0002  00  29" (2 years, 0 months, and 29 days) instead of "0001  09  17."

3.  The applicant contended that the entry in item 11 of his DD Form 214 justified a change to his net active service.  However, it is noted that the time entered in item 11 is in error.  Time spent in basic and advanced individual training is not counted as time served in an MOS.  Time lost also is not counted as time served in an MOS.  Therefore, the time in item 11 cannot exceed the total net service included on the DD Form 214.  However, the Board only corrects errors specifically requested by an applicant.  Therefore, no correction is being made to item 11.

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 amending his DD Form 214 as follows:

	a.  change item 12a to show "2003  02  18" instead of "2003  05  26" and

	b.  change item 12c to show "0002  00  29" instead of "0001  09  17."



      _________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)                                         AR20080019390



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ABCMR Record of Proceedings (cont)                                         AR20080019390



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