IN THE CASE OF:	

		BOARD DATE:	9 July 2009    

		DOCKET NUMBER:  AR20090002529 


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 31 July 1996 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show the date of entry (DOE) onto active duty as 13 July 1976. 

2.  The applicant states his 31 July 1996 DD Form 214 incorrectly shows a DOE  of 22 December 1977.  It should be 13 July 1976.

3.  The applicant provides copies of his 31 July 1996 DD Form 214, a DA Form 2A (Personnel Qualification Record Part 1), and a DA Form 2-1 (Personnel Qualification Record). 

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 served in the U.S. Marine Corps Reserve (USMCR) from 19 September 1972 through 25 November 1973.  The DD Form 214 MC issued at this time shows the applicant served on active duty for six months during this period.

3.  He enlisted in the Army National Guard on 16 December 1973 and served in a drilling status until he enlisted in the U.S. Army Reserve (USAR) on 12 May 1976.  Copies of his National Guard separation documents for this period are not of record.  

4.  The applicant served on active duty from 28 July 1976 through 21 December 1977, when he was discharged to immediately reenlist in Regular Army (RA).

5.  A 29 November 1978 DD Form 214 shows the applicant entered active duty for this period on 22 December 1977 and was discharged to immediately reenlist.

6.  The applicant served on continuous active duty from 30 December 1978 until he retired on 31 July 1996.

7.  The DD Form 214, dated 31 July 1996, shows a DOE of 22 December 1977; and immediate reenlistments this period of "771222-810830, 810931-861130, 861201-910617.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers upon retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The regulation as in effect between 1972 and 1979, stated a DD Form 214 would be issued for each period of enlistment.  In 1979 this regulation changed to state that a DD Form 214 will not be prepared for enlisted Soldiers discharged for the purpose of immediate reenlistment in the RA.  To bring the records into alignment on a subsequent DD Form 214 for Soldiers who had immediate reenlistment and had been issued a DD Form 214, the DOE for any future DD Form 214 would be the day after the issuance of the previous DD Form 214 not the initial DOE onto a period of continuous active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states his 31 July 1996 DD Form 214 incorrectly shows a DOE of 22 December 1977 that should be 13 July 1976.

2.  Under the earlier provisions of Army Regulation 635-5, the applicant was properly issued DD Forms 214 for his periods of service from 19 September 1972 through 25 November 1973, from 28 July 1976 through 21 December 1977, and 22 December 1977 through 29 November 1978. 

3.  At the time of the regulation change, for a Soldier who had an immediate reenlistment, the date entered on the form as the DOE for this period was supposed to be the day after the date of the last DD Form 214.  

4.  The applicant's 31 July 1996 DD Form 214 incorrectly shows a period of service for which another DD Form 214 had already been issued.  Additionally, the applicant's earlier DD Forms 214 do not correctly carry forward all of his recorded periods of active duty.

5.  The applicant is correct that the DOE on the 31 July 1996 DD Form 214 is in error; however, the correct DOE on this form should be the day after his last DD Form 214, 30 November 1978.

6.  It is appropriate to correct the 31 July 1996 DD Form 214 to show a DOE of 30 November 1978.

7.  A correction of the 31 July 1996 DD Form 214 to show a DOE, at block 12a (Date Entered AD This Period) as 30 November 1978, requires a correction of block 12c (Net Active Service This Period) to show 17 years, 8 months, and 2 day and block 12d (Prior Active Service) to show 3 years, 6 months, and 23 days.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ___x_____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the following on the 31 July 1996 DD Form 214, at:

	a.  block 12a, 30 November 1978;

	b.  block 12c, 17 years, 8 months, and 2 day; and 

	c.  block 12d, 3 years, 6 months, and 23 days.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to annotation of an earlier date of entry on active duty as 13 July 1976.  




_______ _   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)                                         AR20090002529



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ABCMR Record of Proceedings (cont)                                         AR20090002529



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