IN THE CASE OF:	  

		BOARD DATE:	      2 APRIL 2009

		DOCKET NUMBER:  AR20080018348 


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 records be corrected to show that he had 7 years, 8 months, and 27 days of service at the time of separation.  He also asks, as a result of this correction, that his pay be adjusted.

2.  The applicant states, in effect, that he did not realize the error until the Department of Veterans Affairs requested a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He notes he entered the “Active Reserve” on 2 May 1980 and “Active Duty” in November 1981.

3.  The applicant provides a copy of his DD Form 214 for the period ending
17 July 1981 and his disability retirement orders on which he wrote that he entered service on 2 May 1980 and that he had “7 years – 1 mos, 25 days.”  He also submits a copy of a DA Form 428 (Application for Identification Card), dated 5 June 1980, and a notarized statement attesting to the date he entered military service and subsequent disability issues.

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 graduated from high school in May 1981.  Documents associated with the applicant’s initial entry into military service were not in records available to the Board.  However, his records do contain a copy of his 1981 Regular Army enlistment documents.

3.  A 1981 DD Form 368 (Request for Discharge or Clearance from Reserve Component) indicates the applicant initially entered military service on 2 May 1980, thereby establishing his Pay Entry Basic Date (PEBD) as 2 May 1980.  That form indicates the applicant was enlisting in the Army on 18 November 1981 and that he had 1 month and 28 days of “active” service during his “current enlistment” and that he had 10 months and 22 days of “inactive” service.

4.  The applicant’s DD Form 214 for the period ending 17 July 1981 indicates he entered active duty on 22 May 1981, while a member of the U.S. Army Reserve (USAR), for the purpose of undergoing military occupational specialty (MOS) training.  After 1 month and 26 days, on 17 July 1981 he was released from active duty for training and returned to his USAR unit.  Item 12d (Total Prior Active Service) reflects 1 month and 28 days, while item 12e (Total Prior Inactive Service) reflects 10 months and 22 days.

5.  On 22 October 1981 the applicant executed a DD Form 4 (Enlistment/
Reenlistment Document – Armed Forces of the United States) indicating that he was enlisting in the USAR Delayed Entry/Enlistment Program (DEP) with the intent to enlist in Regular Army for a period of 4 years within 180 days.

6.  The applicant’s 1981 enlistment documents indicated he had 3 months and 24 days of total prior active military service; 1 year, 2 months, and 22 days of total inactive military service; and that his PEBD was 2 May 1980.

7.  On 18 November 1981 the applicant enlisted in the Regular Army.  

8.  Documents associated with the applicant’s disability processing indicate that as of 24 June 1987 the applicant would have completed 5 years, 11 months, and 26 days of active Federal service and 7 years, 2 months and 18 days of service 
for pay purposes.  That same information is recorded on his DA Form 3713 (Data for Retired Pay) on which his disability retired pay would have been based.  His discharge orders indicate his PEBD was 30 June 1980.

9.  On 24 June 1987 the applicant was discharged by reason of permanent physical disability.  Item 12c (Net Active Service This Period) indicates 5 years,
7 months, and 7 days of service; while Item 12d reflects 3 month and 24 days; and item 12e reflects 1 year, 2 months, and 22 days.

10.  Army Regulation 635-5 (Separation Documents) states, in effect, that in most instances a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from the Active Army.  It specifically notes that a DD Form 214 will be issued after completion of initial active duty for training which resulted in the award of an MOS, even though the active duty was less than 90 days; this includes completion of USAR Split Training Program.  DD Forms 214 are also issued when an individual is discharged by reason of physical disability, regardless of the period of time served on active duty.

11.  Army Regulation 635-5 notes that item 12a (Date Entered AD [Active Duty] This Period) will reflect the first day of the last immediate reenlistment while item 12b (Separation Date This Period) is self-explanatory.  Item 12c will reflect all service, less time lost, between the dates entered in items 12a and b.  Active service completed prior to the date entered in item 12a will be entered in item 12d and inactive service completed prior to the date entered in item 12a will be records in item 12e.

12.  Department of Defense Financial Management Regulation states that for most members who enter and serve on active duty without a break in service, the basic pay date is the date the member enters active or inactive service.  If, however, there is a break in service, then the time between periods of service usually is not included.  The regulation states that all basic pay date computations start from the date of the member’s most recent entry on duty without a break in service.  For enlisted members, that date is the initial date of enlistment.  The ending date is the date of separation.  If the ending date is the 31st day of the month, then change it to 30.  If the day is February 28 in a non-leap year, then change it to February 30 for computation purposes.  If the day is February 29, then change it to February 30 for computation purposes.  Do not change February 28 of a leap year to February 30.  The beginning and ending dates are subtracted and 1 day is added to the result to account for inclusive days.



DISCUSSION AND CONCLUSIONS:

1.  Although documents associated with the applicant’s initial enlistment in the U.S. Army were not available to the Board, the evidence which is available indicates the applicant initially entered military service as a member of the USAR on 2 May 1980 while still in high school.  It is unclear why his final separation orders indicated that his PEBD was 30 June 1980 as there is no evidence the applicant had any break in military service between his initial entry on 2 May 1980 and his final discharge on 24 June 1987.

2.  Based on his 1981 DD Form 214, which indicates prior active service of
1 month and 28 days, he likely underwent basic combat training in the summer of 1980.  He again served on active duty between 22 May 1981 and 17 July 1981, for a period of 1 month and 26 days, as noted on his 1981 DD Form 214.  

3.  On 18 November 1981 the applicant enlisted in the Regular Army.  At the time of his November 1981 enlistment, the applicant would have had 3 months and 24 days of prior active service (1 month and 28 days associated with his initial active duty for basic combat training and 1 month and 26 days associated with his active duty for MOS training between 22 May and 17 July 1981.)  He would have had a total of 1 year, 2 months, and 22 days of inactive service.

4.  When the applicant was discharged from active duty in June 1987 by reason of permanent physical disability, the entries on his DD Form 214 correctly reflected a total of 5 years, 7 months, and 7 days of active service between
18 November 1981 and 24 June 1987.  His prior total active service of 3 months and 24 days and prior inactive service of 1 year, 2 months, and 22 days were appropriately recorded in items 12d and 12e on his DD Form 214 for the period ending 24 June 1987.

5.  The applicant’s PEBD is 2 May 1980.  He had a total of 7 years, 1 month, and 23 days of military service between his initial entry into military service on 
2 May 1980 and his 24 June 1987 discharge, not 7 years, 8 months, and 27 days as he indicated in his application.  His various periods of active and inactive service are correctly recorded on his DD Forms 214 for the period ending 17 July 1981 and 24 June 1987.

6.  Based on the above, the applicant's 24 June 1987 DD Form 214 correctly reflects his record of service; 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.



      __________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)                                         AR20080018348



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ABCMR Record of Proceedings (cont)                                         AR20080018348



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