DOCKET NUMBER:  AR20090001651 


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 Item 12a (Date Entered Active Duty This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 August 1994 be corrected to show he entered active duty on 5 February 1988.

2.  The applicant states, in effect, that he initially entered active duty on 
5 February 1988 and reenlisted in 1991.  He further states that based on the inaccurate enlistment date reflected on his DD Form 214, he does not qualify for the New York State Educational Benefits.

3.  The applicant provides his DD Form 214 in support of his application.

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 Official Military Personnel File (OMPF) contains a DD Form 4 (Enlistment/Reenlistment Document), which shows he initially enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 15 May 1987, for a period of 8 years.  It also shows that on 4 February 1988, he was discharged from the DEP and on 5 February 1988, he enlisted in the Regular Army (RA) for a period of 4 years.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record), which was prepared on 9 February 1988, shows in Item 20 (Basic Enlisted Service Date [BESD]) his entry date as 5 February 1988.  

4.  The applicant's OMPF contains a DD Form 4, which shows he reenlisted in the RA for a period of 3 years on 1 September 1991.  His record further shows he continued to serve on active duty until 31 August 1994, at which time he was honorably released from active duty (REFRAD) under the provisions of chapter 4, Army Regulation 635-200, by reason of expiration of term of service (ETS).

5.  The applicant's OMPF also contains Detachment D, 510th Personnel Services Battalion Orders Number 160-10, dated 16 August 1994, which directed the applicant's REFRAD on 31 August 1994.

6.  The DD Form 214 issued to the applicant upon his 	REFRAD on 31 August 1994, shows in Item 12a that he entered active duty on that period of service on 1 October 1991.  Item 12c (Net Service This Period) shows he completed 2 years and 11 months of active duty service during the period covered by the DD Form 214 (1 October 1991 - 31 August 1994), and Item 12d (Total Prior Active Service) shows he completed a total of 3 years, 6 months, and 27 days of prior active military service, which equates to 6 years, 5 months, and 27 days of active military service.

7.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon discharge from active military service.  It established standardized policy for the preparation of the DD Form 214.  It stated that item 12a will show the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued.  Item 18 will show a list of enlistment periods for which a DD Form 214 was not issued.  Items 12c, and d will show all service less time lost.

8.  Army Regulation 635-5, currently in effect, states, in pertinent part, that the date entered in block 12a will be the beginning date of the continuous period of active duty for which a DD Form 214 was not previously issued.  The instructions for block 12c state, in pertinent part, to enter the total period of active duty service completed during the period covered by the DD Form 214, and that this total will be arrived at by subtracting the date in block 12a from the date in bloci 12b (Separation Date This Period).  The regulation also provides for entering all prior active duty service for which a DD Form 214 was issued in block 12d.  The instructions for block 18 (Remarks) states, in pertinent part, that for enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant entered active duty on 5 February 1988.  He reenlisted on 1 September 1991.  By strict interpretation of the regulation then in effect, 1 September 1991 is the correct date that should be shown in block 12a of his DD Form 214.  Under the current regulation, block 12a would have shown 5 February 1988 as the beginning date of his continuous period of active duty for issuance of that DD Form 214, with block 12c showing his net (continuous) active service for that period as 6 years, 6 months, and 26 days.  In addition, block 18 of the DD Form 214 omits his continuous active duty period beginning on 1 September 1991, presumably because it was not technically an “enlistment” period.

2.  In view of the foregoing and as an exception to the current regulatory policy, it would be in the interest of justice to correct the applicant’s records as recommended below.

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.  deleting from Item 12a of the applicant's DD Form 214 the entry "91 10 01" and replacing it with the entry "88  02  05";

	b.  deleting from Item 12c of the applicant's DD Form 214 the entry "02 00 10" and replacing it with the entry "06  06  26";

	c.  deleting from Item 12d of the applicant's DD Form 214 the entry "03 06 27" and replacing it with the entry "00  00  00"; 

	d.  adding to Item 18 of the applicant's DD form 214 the entry "IMMEDIATE REENLISTMENTS THIS PERIOD 880205 - 910930; 19910901 - 940831"; and 

	e.  by issuing him the appropriate correction document that reflects these changes.



      __________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)                                         AR20090001651



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ABCMR Record of Proceedings (cont)                                         AR20090001651


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