DOCKET NUMBER:  AR20090000443 


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, correction of his records to show he completed 18 years of total active service.

2.  The applicant states, in effect, he was released from active duty (REFRAD) on 26 August 1976 and he reentered the Regular Army (RA) four months later on 27 December 1976.  The applicant also states he reenlisted on 9 March 1978 and was honorably discharged due to physical disability on 29 November 1990.  The applicant concludes that the total active Federal service on his discharge document is incorrect because it shows he completed 16 years and 11 months; however he asserts that he completed almost 18 years of active Federal service.

3.  The applicant provides copies of three DD Forms 214; two DD Forms 214 (Report of Separation from Active Duty) with effective dates of 26 August 1976 and 9 March 1978 and a DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 29 November 1990.

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 military personnel records contain a DD Form 214 that shows he enlisted and entered active duty in the RA this period on 30 August 1973, was honorably REFRAD on 26 August 1976, and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation (MSO).  Item 21 (Time Lost), along with Item 27 (Remarks), shows the applicant had 3 days of time lost from 8 February through 10 February 1974.  Item 18 (Record of Service), block a (Net Active Service This Period) shows he completed 2 years, 11 months, and 24 days; block b (Prior Active Service) shows 0 years, 0 months, and 0 days; block c (Total Active Service) shows 2 years, 11 months, and 24 days; block d (Prior Inactive Service) shows 0 years, 0 months, and 0 days; and block e (Total Service for Pay) shows 2 years, 11 months, and 24 days.

3.  The applicant’s military personnel records contain a DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States) that shows he enlisted in the USAR for a period of 6 years on 23 November 1976 and requested to be discharged from the USAR on 26 December 1976 to enlist in the RA on 27 December 1976 for a period of 4 years.  Item 9 (Previous Military Service), block a (Total Active Military Service), shows 2 years, 11 months, and 24 days and Item 9, block b (Total Inactive Military Service) shows 0 years,
0 months, and 0 days.

4.  The applicant’s military personnel records contain a DD Form 214 that shows he enlisted and entered active duty in the RA this period on 27 December 1976 and was honorably discharged on 9 March 1978 to reenlist in the RA.  Item 18, block a, shows he completed 1 year, 2 months, and 13 days of net active service this period; block b shows 2 years, 11 months, and 24 days of prior active service; block c shows 4 years, 2 months, and 7 days of total active service; block d shows 0 years, 4 months, and 1 day of prior inactive service; and block e shows 4 years, 6 months, and 8 days of total service for pay.

5.  The applicant’s military personnel records contain a DD Form 4 that shows he reenlisted in the U.S. Army for a period of 4 years on 10 March 1978.  Item
9, block a, shows 4 years, 2 months, and 7 days and Item 9, block b, shows
0 years, 4 months, and 1 day.

6.  The applicant’s military personnel records contain a DA Form 3686-1 (JUMPS Army - Leave and Earnings Statement) covering the period 1 - 30 September 1990.  Item 44 (PEBD) [Pay Entry Basic Date] contains the entry “730830
(i.e., 30 August 1973).

7.  The applicant’s military personnel records contain a DD Form 214 that shows he entered active duty in the RA this period on 10 March 1978 and was honorably discharged based on physical disability with severance pay on
29 November 1990.  Item 18 (Remarks), in pertinent part, shows the applicant had immediate reenlistments during this period from 10 March 1978 through
9 March 1982, 10 March 1982 through 8 January 1985, and 9 January 1985 through 17 April 1987.  Item 12 (Record of Service), block a (Date Entered AD [Active Duty] This Period) shows “78 03 10” (i.e., 10 March 1978); block b (Separation Date This Period) shows “90 11 29” (i.e., 29 November 1990); block c (Net Active Service this Period) shows he completed 12 years, 8 months, and 20 days; block d (Total Prior Active Service) shows 4 years, 2 months, and
10 days; and block e (Total Prior Inactive Service) shows 0 years, 4 months, and
3 days.

8.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the
DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.

9.  Table 2-1 (DD Form 214 Preparation Instructions) of the Separation Documents regulation, in effect at the time of the applicant's discharge, contains item-by-item instructions for completing the DD Form 214.  The instructions for Item 12 (Record of Service) states to use extreme care in completing this block since post-service benefits, final pay, retirement credit, etc. are based upon the information contained herein.

   a.  Block a (Date Entered AD This Period) states to enter the beginning date of the enlistment period or tour of active duty for which a DD Form 214 was not issued under paragraph 1-4b(5).

   b.  Block b (Separation Date This Period) states to enter the separation date this period.  (Separation date may not be the contractual date if extended for make-up of lost time or Soldier has been held over for the convenience of the Government.)

   c.  Block c (Net Active Service This Period) states to enter the amount of service this period (subtract 12a from 12b).  Lost time under Title 10, United States Code, section 972, and non-creditable time after expiration term of service, if any, will be deducted.

   d.  Block d (Total Prior Active Service) states to enter the total amount of prior active military service less lost time, if any.  If there was no prior active service, enter “00  00  00.”

   e.  Block e (Total Prior Inactive Service) states to enter the total amount of prior inactive service, less lost time, if any.  Delayed Entry Program (DEP) time which begins on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in this block, but it is creditable service towards the fulfillment of the statutory military service obligation (MSO) date in Item 12, block i.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend, in effect, that the applicant’s records should be corrected to show he completed 18 years of active Federal service.

2.  The evidence of record shows the applicant enlisted and initially entered active duty in the RA on 30 August 1973 and he was honorably REFRAD on
26 August 1976.  A service computation for this period of active duty service reveals that it equates to 2 years, 11 months, and 27 days of active service.  However, the evidence of record also shows the applicant had 3 days of time lost during this period (i.e., from 8 February through 10 February 1974) resulting in a 3-day deduction in his active service this period for a total of 2 years, 11 months, and 24 days of net active service this period.  Records show that the applicant's DD Form 214 with an effective date of 26 August 1976 documents that he was credited with completing 2 years, 11 months, and 24 days of net active service this period; 0 years, 0 months, and 0 days of prior active service; 2 years,
11 months, and 24 days of total active service; 0 years, 0 months, and 0 days of prior inactive service; and 2 years, 11 months, and 24 days total service for pay.
Thus, records show the applicant’s DD Form 214 with an effective date of
26 August 1976 correctly documents his net active service for this period of service, prior active service, total active service, prior inactive service, and total prior inactive service.
3.  The evidence of record shows the applicant was transferred to the USAR Control Group (Reinforcement) to complete his remaining MSO on 27 August 1976 and he continued to serve in the USAR through 26 December 1976.  A service computation for this period of inactive service reveals that it equates to
0 years, 4 months, and 0 days of inactive service. 

4.  The evidence of record shows the applicant enlisted and entered active duty in the RA on 27 December 1976 and he was honorably discharged on 9 March 1978 to reenlist in the RA.  A service computation for this period of active duty service reveals that it equates to 1 year, 2 months, and 13 days of active service.  Records show that the applicant's DD Form 214 with an effective date of 9 March 1978 documents that he was credited with completing 1 year, 2 months, and
13 days of net active service this period; 2 years, 11 months, and 24 days of prior active service; 4 years, 2 months, and 7 days of total active service; 0 years,
4 months, and 1 day of prior inactive service; and 4 years, 6 months, and 8 days of total service for pay.  Thus, records show the applicant’s DD Form 214 with an effective date of 9 March 1978 correctly documents his net active service for this period of service, prior active service, and total active service.  However, the evidence of record shows that the applicant’s prior inactive service totaled 4 months (vice 4 months and 1 day) and, as a result, his total service for pay totaled 4 years, 6 months, and 7 days (vice 4 years, 6 months, and 8 days).  Despite the aforementioned errors by Government officials, no action is being taken to correct the applicant’s DD Form 214 with an effective date of 9 March 1978 to show a reduction in the applicant’s prior inactive service and/or total service for pay.

5.  The evidence of record shows the applicant entered active duty in the RA this period on 10 March 1978 and he was honorably discharged on 29 November 1990.  A service computation for this period of active duty service reveals that it equates to 12 years, 8 months, and 20 days of active service.  Records shows the applicant’s DD Form 214 with an effective date of 29 November 1990 documents that he completed 12 years, 8 months, and 20 days of net active service this period; 4 years, 2 months, and 10 days of total prior active service; and 0 years, 4 months, and 3 days of total prior inactive service.  Thus, records show the applicant’s DD Form 214 with an effective date of 29 November 1990 correctly documents his net active service for this period of service.  However, the evidence of record shows that the applicant’s total prior active service totaled 4 years, 2 months, and 7 days (vice 4 years, 2 months, and 10 days).  Thus, it appears that the applicant’s 3 days of time lost during a prior period of active service was overlooked and not deducted from this service computation.  In addition, the evidence of record shows the applicant’s total prior inactive service totaled 4 months (vice 4 months and 3 days).  In view of the foregoing, the applicant’s total active service was, in fact, 16 years, 10 months, and 27 days and his total service for pay was 17 years, 2 months, and 27 days.  Despite the aforementioned errors by Government officials, no action is being taken to correct the applicant’s DD Form 214 with an effective date of 29 November 1990 to show a reduction in the applicant’s total prior active service and/or total prior inactive service.

6.  Thus, after a thorough review of the applicant’s military personnel records, it is concluded that the evidence of record fails to support the applicant’s contention that he completed 18 years of active Federal service.  Therefore, in view of all of the foregoing, there is no basis for correcting the applicant’s DD Form 214 with an effective date of 29 November 1990.

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)                                         AR20090000443



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ABCMR Record of Proceedings (cont)                                         AR20090000443



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