IN THE CASE OF:
BOARD DATE: 6 August 2009
DOCKET NUMBER: AR20090002789
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 correction of his DD Form 214 (Report of Separation from Active Duty) to show he completed 20 years of active duty instead of 17 years and 9 days.
2. The applicant states that he was recently told by a retired colonel that he should not have been separated from the Army as he had completed 17 years and 9 days of active service.
3. The applicant provides a copy of his DD Form 214, dated 1 September 1977, in support of his request.
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 applicants 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 applicants 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 records show he was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant on 12 June 1960 and entered active duty on 23 September 1960. He subsequently served in various staff and command positions within and outside the continental United States. He was promoted to major on 28 March 1968.
3. On 24 June 1977, by letter, the U.S. Army Human Resources Command, Alexandria, VA, notified the applicant that he was not selected for promotion to lieutenant colonel. The letter further notified him that since this was his second non-selection for promotion and since he was not within 2 years of becoming eligible for retirement, he would be released from active duty within 90 days of notification, in accordance with Army Regulation 635-100 (Officer Personnel).
4. On 11 July 1977, the applicant acknowledged receipt of the notification of a second non-selection for promotion memorandum and indicated that he desired to be released from active duty. Accordingly, he was honorably released from active duty on 1 September 1977 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). The DD Form 214 he was issued shows he completed 16 years, 11 months, and 9 days of creditable active service. He also had 30 days of prior active service and 4 years, 10 months, and 13 days of inactive service.
5. On 7 September 1983, the applicant was transferred to the USAR Control Group (Retired Reserve), and on 3 February 1998, he was placed on the USAR Retired list.
6. Army Regulation 635-100, in effect at the time, prescribes policy and procedures governing transfer and discharge of Army officer personnel from the Active Army. Chapter 3, section XVII provided for the voluntary release of officers who failed to be selected for promotion to a Reserve component grade higher than that in which serving.
7. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldiers most recent period of continuous active duty. It provides a brief, clear cut record of active duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on termination of a Soldiers service. A DD Form 214 will be prepared for selected categories of military personnel including Reserve component Soldiers completing 90 days or more of continuous active duty for training, Full-Time National Guard Duty, active duty for special work, temporary tours of active duty, or Active Guard Reserve service.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant entered active duty on 23 September 1960 and was honorably released from active duty on 1 September 1977. He was credited with completing 16 years, 11 months, and
9 days of active service during this period of active duty and 30 days of prior active duty for a total of 17 years and 9 days of total active service, which is correctly shown on his DD Form 214.
2. The DD Form 214 is a summary of a Soldiers most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. In this case, there is no evidence in the available record and the applicant did not provide any evidence that shows he completed any other active duty service or that he completed 20 years of active service. Therefore, his DD Form 214 is correctly constituted.
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) AR20090002789
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