IN THE CASE OF:	

		BOARD DATE:	       16 April 2009

		DOCKET NUMBER:  AR20080019445 


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 items 12a (Date Entered AD [Active Duty] This Period) and 12d (Total Prior Active Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 December 2005 be corrected.

2.  The applicant states, in effect, that he was ordered to active duty in November 2001 for training and that he enlisted in the Regular Army in May 2002.  He contends that these periods of service are not reflected on his DD Form 214 for the period ending 2 December 2005.

3.  The applicant provides a DD Form 214 for the period ending 2 December 2005, a reservation sheet, a statement of service, and discharge orders from the U.S. Army Reserve (USAR) 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.  The applicant's enlistment contract shows he enlisted in the USAR on 22 May 2001 for a period of 8 years.  He was ordered to active duty on 1 November 2001 for training.  On 18 April 2002, he was released from active duty.

3.  Item 12c (Net Active Service This Period) of the applicant's DD Form 214 for the period ending 18 April 2002 shows he served 5 months and 18 days on active duty.  Item 12e (Total Prior Inactive Service) of this DD Form 214 shows he had 5 months and 9 days of prior inactive service.

4.  On 28 May 2002, the applicant was honorably discharged from the USAR for immediate enlistment in the Regular Army.

5.  The applicant's enlistment contract shows he enlisted in the Regular Army on 29 May 2002 for a period of 3 years.  On 2 December 2005, he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial.

6.  Item 12a of the applicant's DD Form 214 for the period ending 2 December 2005 shows the entry "2004 04 20" [20 April 2004].  Item 12c of this DD Form 214 shows the entry "0002 10 22."  Item 12d of this DD Form 214 shows the entry "0000 00 00."  Item 12e of this DD Form 214 shows the entry "0000 00 00."  His DD Form 214 also shows he had lost time from 1 November 2004 to 2 December 2005 [1 year, 1 month, and 2 days].

DISCUSSION AND CONCLUSIONS:

1.  The applicant's enlistment contract which shows he enlisted in the Regular Army on 29 May 2002 is accepted as sufficient evidence on which to amend item 12a of his DD Form 214 for the period ending 2 December 2005.  Therefore, item 12a of his DD Form 214 for the period ending 2 December 2005 should be corrected to show he entered active duty on 29 May 2002.

2.  Based on the above correction to item 12a on the applicant's DD Form 214 for the period ending 2 December 2005, and minus his lost time (1 year, 1 month, 


and 2 days), item 12c of the applicant's DD Form 214 for the period ending 2 December 2005 should be corrected to show he had 2 years, 5 months, and 2 days of net active service this period.

3.  The evidence of record shows the applicant was ordered to active duty on 1 November 2001 for training and was released from active duty on 18 April 2002 after completing 5 months and 18 days of active duty.  Therefore, item 12d of his DD Form 214 for the period ending 2 December 2005 should be corrected to show he had 5 months and 18 days of prior active service.

4.  The applicant then served on inactive duty in the USAR for an additional        1 month and 10 days, from 19 April 2002 through 28 May 2002, when he was discharged so he could enlist in the Regular Army.  It therefore appears that item 12e of the applicant’s DD Form 214 for the period ending 2 December 2005 is incorrect and should be amended to show he had 6 months and 28 days of prior inactive service.

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:

	a.  deleting the entries in items 12a, 12c, 12d, and 12e of the applicant's DD Form 214 for the period ending 2 December 2005; 

	b.  adding the entry, "2002 05 29" in item 12a of this DD Form 214; 

	c.  adding the entry, "0002 05 02" in item 12c of this DD Form 214; and

	d.  adding the entry, "0000 05 18" in item 12d of this DD Form 214; and



	e.  adding the entry, "0000 06 28" in item 12e of this DD Form 214.




      ____________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)                                         AR20080019445



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ABCMR Record of Proceedings (cont)                                         AR20080019445



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