IN THE CASE OF:	  

		BOARD DATE:	       28 JULY 2009

		DOCKET NUMBER:  AR20090001152 


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 that his DD Form 214 (Report of Separation from Active Duty) be corrected to show his entry onto active duty date was "73/01/05" not "78/12/22." 

2.  The applicant states that the date he entered active duty is incorrect on his DD Form 214 with a separation date of 6 December 1976.   

3.  The applicant provides a copy of his DD Form 214 which shows his separation date as "78/12/22."

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 record contains an original copy of his DD Form 4 (Enlistment Contract--Armed Forces of the United States) that shows he entered the U. S. Army Reserve on 12 December 1972 for a 6-year period.  He then enlisted in the Regular Army on 22 December 1972; however, his enlistment contract noted he was delayed from entering active duty until 2 January 1973. 

3.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman). 

4.  On 6 December 1976, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200, paragraph 5-14 due to the short length of time prior to expiration of his term of service precluded reassignment action.  He was transferred to the U.S. Army Reserve Control Group (Standby Reserve) to complete his military service obligation (MSO).  

5.  At the time of this release from active duty, the applicant was issued a DD Form 214 with a separation effective date of 6 December 1976.  Item 15 (Date Entered Active Duty this Period) shows the entry "Year 78, Month 12, Day 22".  Item 18 (Record of Service) shows the following:

	a.  Net Active Service this Period as 3 years, 11 months, and 15 days;

	b.  Prior Active Service as 0 years, 0 months, and 0 days;

	c.  Total Active Service as 3 years, 11 months, and 15 days;

	d.  Prior Inactive Service as 0 years, 0 months, 11 days;

	e.  Total Service for Pay as 3 years, 11 months, and 26 days; and

	f.  Foreign Service this Period as 1 year, 9 months, and 15 days.

6.  On 22 September 1977, while still on his MSO, the applicant enlisted/reenlisted  in the U.S. Army Reserve for a period of 6 years in the rank and grade of sergeant/pay grade E-5.  

7.  On 29 September 1977, he enlisted in the Regular Army for a 3-year period.  He was assigned to101st Airborne Division at Fort Campbell, Kentucky.

8.  On 31 July 1978, records show he was discharged from the Regular Army prior to his expiration of his term of service with a characterization of service 
under honorable conditions.  He was discharged under the provisions of Army Regulation 632-200, paragraph 13-4(c) for unsuitability for service in the military. His DD Form 214 for this period shows he had 3 years, 11 months, and 15 days of prior active service and 4 years, 9 months, and 18 days of total active service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 with a separation date of 
12 December 1976 is incorrect, specifically the date he entered active duty during this service period is incorrect.  He contends the date he entered active duty was 5 January 1973.

2.  The evidence of record shows that the applicant had two periods of active duty service and that his first active duty enlistment period started on 2 January 1973, and after a nine-month break in service, his second enlistment period started on 29 September 1977.   

3.  The applicant's first enlistment period on active duty ended honorably on 6 December 1976.  His second active duty enlistment period ended under honorable conditions on 31 July 1978.

4.  In view of the foregoing, the applicant is entitled to have his record corrected to show that he entered active duty on 2 January 1973, not as he contended on 5 January 1973.  Therefore, Item 15 of his DD Form 214 with a separation date of 6 December 1976 should be amended to show his date of entry onto active duty was 2 January 1973.

5.  As the date the applicant entered active duty is incorrect on his issued DD Form 214 with a separation date of 6 December 1978, it would be appropriate to correct the applicant’s record of service on his two issued DD Forms 214.

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.  amending his DD Form 214 with a separation date of 6 December 1976 to show that he entered active duty on 2 January 1973, specifically item 15 (Date Entered Active Duty this Period); and

     b.  correcting item 18 (Record of Service) to show:

       (1)  Net Active Service this Period:  3 years, 11 months, 5 days;

          (2)  Total Active Service:  3 years, 11 months, 5 days; 

          (3)  Prior Inactive Service:  20 days; and

          (4)  Total Service for Pay:  3 years, 11 months, 25 days.

     c.  amending his DD Form 214 with a separation date of 31 July 1978, item 18 (Record of Service) to show: 

       (1)  Prior Active Service:  3 years, 11 months, 5 days;

          (2)  Total Active Service:  4 years, 9 months, 8 days;

          (3)  Prior Inactive Service:  0 years, 10 months, 13 days; and

          (4)  Total Service for Pay:  5 years, 7 months, 19 days.




      _______ _   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)                                         AR20090001152



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ABCMR Record of Proceedings (cont)                                         AR20090001152



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