IN THE CASE OF:
BOARD DATE: 05 MAY 2009
DOCKET NUMBER: AR20080019967
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 correction of his records to show that he was inducted into the Army on 22 April 1970.
2. The applicant states that the Army made an error in documenting the correct date of his induction.
3. The applicant provides in support of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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's military records show that he was inducted into the Army of the United States on 22 April 1971 in Fresno, California.
3. Nonjudicial punishment was imposed against the applicant on 17 June 1971 for being absent without proper authority from 9 June 1971 until 14 June 1971. His punishment consisted of a forfeiture of pay in the amount of $30.00.
4. He was in a trainee status when he was honorably discharged from the Army on 16 September 1971 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 5-9, for the convenience of the government due to failure meet medical fitness standards at the time of his induction. He had completed 4 months and 8 days of total active service.
5. The DD Form 214 that he was furnished at the time of his discharge shows that he had a second period of lost time from 18 August 1971 through 29 August 1971. His DD Form 214 also shows his date of induction as 22 April 1971 and all of the documents contained in his official records pertaining to his date of his induction show that he was inducted into the Army on 22 April 1971.
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 or discharge.
7. Paragraph 2-9 of Army Regulation 15-185 (Army Board for Correction of Military Records) states 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 records should be corrected to show that he was inducted into the Army on 22 April 1970.
2. His contentions have been noted. However, every document contained in his official records that pertains to his induction shows that he was inducted into the Army on 22 April 1971. His DD Form 214 was properly prepared at the time of his discharge to show that he was inducted into the Army on 22 April 1971 and he has provided no evidence to the contrary.
3. As previously stated, the applicant has the burden of proving an error or injustice by a preponderance of the evidence and he has failed to meet this requirement.
4. 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.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20080019967
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ABCMR Record of Proceedings (cont) AR20080019967
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