IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20090000045 


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 the date he enlisted in the Army be corrected on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, he entered the Army on 1 August 1973 and reenlisted on 3 May 1976 and again on 28 February 1980.

3.  In support of his request, the applicant provides a copy of his DD Form 214, with an effective date of his discharge of 25 February 1983; and a copy of his discharge certificates honorably discharging him on 2 May 1976, 27 February 1980, and on 25 February 1983.

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 record shows that he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 12 July 1973 for 6 years.  On 31 July 1973, the applicant was discharged from the DEP and he enlisted in the Regular Army (RA) for 3 years on 1 August 1973.  During this period, the applicant completed basic combat training at Fort Jackson, South Carolina, and his advanced individual training at Fort Ord, California.  After completing all required training, he was awarded military occupational specialty (MOS) 71H (Personnel Specialist).  The applicant was honorably discharged in the rank and pay grade of specialist four (SP4)/E-4, for the purpose of immediately reenlisting in the RA on 2 May 1976.  The applicant was provided a DD Form 256A (Honorable Discharge Certificate) as a testimonial of his honest and faithful service.  A copy of the DD Form 214 it is believed was issued the applicant for this enlistment period is not available for the Board's review.

3.  The applicant reenlisted for 3 years on 3 May 1976 for a present duty assignment option.  On 9 August 1977, the applicant extended his enlistment of 3 May 1976 for 12 months to enable him to qualify for command sponsorship of dependents.  The applicant served on this extended enlistment of service until 27 February 1980 when he was honorably discharged for the purpose of again immediately reenlisting.  The record shows the applicant reenlisted for 3 years in pay grade E-5 on 28 February 1980.  The applicant was not provided a DD Form 214 in accordance with prescribes policies and procedures regarding separation documents which were implemented on 1 October 1979 at the end of this period of his service; however, he was provided a DD Form 256A.

4.  The evidence of record shows the applicant continued to serve until 25 February 1983 when he was honorably discharged in the rank and pay grade of specialist five (SP5)/E-5, in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, at the expiration of his term of service.  On the date of his discharge, the applicant held the MOS 75D (Personnel Records Specialist) as his primary MOS and he had completed a total of 9 years, 6 months, and 25 days of total creditable active service, with no time lost.  Because the applicant was being discharged and not immediately reenlisting, he was provided a DD Form 214 and a DD Form 256A in accordance with policies and procedures regarding separation documents which were in effect on the date of his discharge.

5.  Item 12a (Date Entered AD this Period) of the applicant's DD Form 214, with an effective separation date of 25 February 1983, shows he entered into the Regular Army on 3 May 1976.  

6.  Item 12b (Separation Date this Period) of the applicant's DD Form 214 shows he was separated on 25 February 1983.
7.  Item 12c (Net Active Service this Period) of the applicant's DD Form 214 shows the applicant had 6 years, 9 months, and 23 days of net active service this period.

8.  Item 12d (Total Prior Active Service) of the applicant's DD Form 214 shows the applicant had 2 years, 9 months, and 2 days of total prior active service.  This total period of active service is the amount of time that passed from 1 August 1973 to the date of his first honorable discharge of 2 May 1976.

9.  Item 12e (Total Prior Inactive Service) of the applicant's DD Form 214 shows the applicant had 19 days of total prior inactive service.

10.  Item 18 (Remarks) of the applicant's DD Form 214 shows the following entry:  "Extension of service was at the request and for the convenience of the Government.  Immediate reenlistment this period:  760503-800227."

11.  Item 29 (Dates of Time Lost During this Period) of the applicant's DD Form 214 shows the entry "None."

12.  The applicant's DD Form 4 (Enlistment Contract - Armed Forces of the United States) with a date of enlistment of 3 May 1976 shows the following information in Item 49 (Prior Service):  a.  "Date and Type of Discharge:  2 May 1976 Honorable DD Form 256A"; b.  "Grade and Unit at Time of Discharge:  SP4/E4 573d PSC Ft. Bragg, NC (FORSCOM)"; and c.  "Date and Term of Last Enlistment:  1 Aug 73 Three (3) Years."

11.  Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes policies and procedures regarding separation documents.  This regulation specifies that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of a Soldier's release from active duty, retirement, or discharge.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service.  A DD Form 214 will be prepared for each Soldier who is being released from active duty, retired, or discharged; however, a DD Form 214 was not issued to active duty personnel who were discharged and reenlisted subsequent to 1 October 1979 (discharge certificates were however issued to all personnel).  The next issued DD Form 214 "From" date does not cover the period(s) of prior enlistments.  (Discharge Certificates; however, are issued to all personnel.)  For service involving the above period, a DD Form 215 is prepared correcting the DD Form 214 issued at time of next separation to show all military service not previously covered by the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  A thorough review of the applicant's service and the dates shown on the DD Form 214 and the DD Forms 256A he provided in support of his request was conducted.  Administrative regularity is presumed, and it is presumed that a DD Form 214 was prepared for the applicant on the date he was discharged for the purpose of immediately reenlisting on 2 May 1976.  However, all of his service is accounted for in items 12d and 12e of his last DD Form 214.

3.  Based on the evidence of record, the applicant is not entitled to a correction of his DD Form 214, with an effective date of separation of 25 February 1983, to show he entered active duty on 1 August 1973.

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.



      ___________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)                                         AR20090000045



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ABCMR Record of Proceedings (cont)                                         AR20090000045



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