IN THE CASE OF:	  

		BOARD DATE:	        9 June 2009 

		DOCKET NUMBER:  AR20090003227 


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 discharge document to show his entire military service, including more than 18 years of active service in the Army.

2.  The applicant states, in effect, the service shown on his discharge document is not accurate.  As a result, he has concerns about a loss of entitlements and benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 18 March 1971; DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 31 March 1994; DA Form 2A (Personnel Qualification Record (PQR) Part I), dated 18 October 1991; and DA Form 2-1 (PQR Part II), reviewed on 13 December 1991.

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 show he enlisted in the U.S. Marine Corps Reserve (USMCR) for a period of 6 years on 10 March 1969.

3.  The applicant’s military personnel records contain a DD Form 214 that shows he enlisted and entered active duty in the U.S. Marine Corps (USMC) for a period of 2 years on 19 March 1969, was honorably released from active duty (REFRAD) on 18 March 1971, and transferred to the USMCR Forces (Class III) to complete his remaining military service obligation (MSO), which expired on 9 March 1975.  Item 22 (Statement of Service), section a (Creditable for Basic Pay Purposes), block 1 (Net Service This Period), shows he completed 2 years, 0 months, and 0 days; block 2 (Other Service) shows 0 years, 0 months, and 9 days; block 3 (Total) shows 2 years, 0 months, and 9 days; and section c (Total Active Service) shows 2 years, 0 months, and 0 days.

4.  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 U.S. Army Reserve (USAR) for a period of 4 years on 14 February 1976 and requested to be discharged from the USAR on 26 February 1976 to enlist in the Regular Army (RA) on 27 February 1976 for a period of 4 years.

5.  The applicant’s military personnel records contain a National Archives (NA) Form 13038 (Certification of Military Service) issued on 29 November 1997.  This document shows the applicant was a member of the RA from 27 February 1976 to 13 April 1978 and that his service was terminated by honorable discharge.

6.  The applicant’s military personnel records show he reenlisted in the RA for a period of 6 years on 14 April 1978 and that he continued to serve on active duty in the RA until he was honorably retired from active duty on 31 March 1994.

7.  The applicant’s military personnel records contain a DA Form 2A, dated 10 June 1993.  Section IV (Service Data), item 1 (PEBD [Pay Entry Basic Date]) contains the entry "700214" (i.e., 14 February 1970) and item 2 (BASD [Basic Active Service Date]) contains the entry "740227" (i.e., 27 February 1974).

8.  The applicant’s military personnel records contain a DA Form 2-1 prepared on 13 July 1982 and reviewed on 27 January 1993.  Item 20 (Basic Enlisted Service Date) contains the entry "740227" (i.e., 27 February 1974).  Item 35 (Record of Assignments), in pertinent part, shows the applicant served in the USMC for 24 months from "6903-7103" (i.e., March 1969 to March 1971); in the USMCR for 48 months from "7103-7503" (i.e., March 1971 to March 1975); and in the USAR from "7602-7602" (i.e., February 1976).  This item also shows the applicant retired from active duty on 31 March 1994 and transferred to the USAR Control Group (Retired).

9.  The applicant’s military personnel records contain a DA Form 2339 (Application for Voluntary Retirement), dated 13 July 1993.  Item 14 (Chronological Dates of Military Service) shows the applicant served in an enlisted status in the Army of the United States (AUS) from 19 March 1969 to 18 March 1971 and that this period of active service totaled 2 years, 0 months, and 0 days; in an enlisted status in the USAR from 19 March 1971 to 26 February 1976 and that this period of inactive service totaled 4 years, 11 months, and 8 days; and in an enlisted status in the RA from 27 February 1976 to 31 March 1994 and that this period of active service totaled 18 years, 1 month, and 4 days.  Item 16 (Total Active Service Creditable for Retirement) shows 20 years, 1 month, and 4 days; item 17 (Total Inactive Service Creditable for Basic Pay Only) shows 4 years, 11 months, and 8 days; and item 18 (Total Service for Basic Pay Purposes) shows 25 years, 0 months, and 12 days.

10.  The applicant’s military personnel records contain a DA Form 3713 (Data for Retired Pay), dated 17 March 1994, that shows the applicant was placed on the Retired list on 1 April 1994.  The Computation of Years of Service Credited for Retirement or Retired Pay section of the document, item 22 (Voluntary Retirement - Section 1333, 3925, 3926), shows 20 years, 1 month, and 4 days, and item 29 (Basic Pay – Title 37, U.S. Code, section 205) shows 25 years, 0 months, and 12 days.

11.  The applicant’s military personnel records contain a DD Form 214 that shows he entered active duty in the RA this period on 14 April 1978 and was honorably retired from active duty on 31 March 1994 based on sufficient service for retirement.  Item 18 (Remarks), in pertinent part, shows the applicant had immediate reenlistments during this period from 14 April 1978 through 1 April 1984, 2 April 1984 through 20 March 1989, and that extension of service was at the request and for the convenience of the government.  Item 12 (Record of Service), block a (Date Entered AD [Active Duty] This Period) contains the entry "78 04 14" (i.e., 14 April 1978); block b (Separation Date This Period) contains the entry "94  03  31" (i.e., 31 March 1994); block c (Net Active Service This 


Period) shows he completed 15 years, 11 months, and 16 days; block d (Total Prior Active Service) shows 4 years, 1 month, and 17 days; and block e (Total Prior Inactive Service) shows 4 years, 11 months, and 8 days.

12.  The applicant’s military personnel records are absent any evidence that he served in the Armed Forces of the United States in an inactive or active status at any time from 10 March 1975 to 13 February 1976.

13.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's discharge for his immediate reenlistment on 13 April 1978, prescribed the separation documents that must be prepared for individuals on retirement, discharge, or release from active military service.  Paragraph 1-4 (DD Form 214 - Report of Separation from Active Duty), provides that a DD Form 214 will be prepared for all personnel, except as indicated in subparagraph b, at time of retirement, discharge, or release from the Active Army.  Subparagraph b provides that the DD Form 214 will not be prepared for members of the Army National Guard of the United States and USAR on active duty for training or inactive duty for training who are dropped from the rolls of the Army by reason or absence without leave; personnel being removed from the Temporary Disability Retired List; and enlisted personnel who are dropped from a period of service because of fraudulent enlistment and who are being held to a prior period of service for trial by court-martial for desertion.

14.  Army Regulation 635-5, with an effective date of 1 October 1979, in pertinent part, ended the need to prepare the DD Form 214 for enlisted members who are discharged for immediate reenlistment in the RA.

15.  Army Regulation 635-5, in effect at the time the applicant was honorably retired from active duty on 31 March 1994, 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 PQR, 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.

16.  Table 2-1 (DD Form 214 Preparation Instructions) of the Separation Documents regulation, in effect at the time the applicant retired from active duty, contains item-by-item instructions for completing the DD Form 214.  The 


instructions for item 12 (Record of Service) state 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, U.S. 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 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 MSO date in item 12, block i.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 with an effective date of 31 March 1994 should be corrected to show he completed more than 18 years of net active service in the Army.



2.  The evidence of record shows the applicant enlisted in the USMCR on 10 March 1969 and was discharged from the USMCR on 18 March 1969.  A service computation for this period of inactive service confirms that it equates to 9 days of inactive service.  The evidence of record also shows the applicant entered active duty in the USMC on 19 March 1969 and was honorably discharged on 18 March 1971.  A service computation for this period of active service confirms that it equates to 2 years of active service.  The evidence of record further shows that these two periods of inactive and active service are accurately documented on the applicant’s DD Form 214 with an effective date of 18 March 1971.

3.  The evidence of record shows the applicant transferred to the USMCR Forces (Class III) on 19 March 1971 to complete his remaining MSO, which expired on 9 March 1975.  A service computation for this period of inactive service reveals that it equates to 3 years, 11 months, and 21 days of inactive service.

4.  There is no evidence the applicant served in the Armed Forces of the United States in either an inactive or active status at any time from 10 March 1975 to 13 February 1976.

5.  The evidence of record shows the applicant enlisted in the USAR on 14 February 1976 and was discharged from the USAR on 26 February 1976.  A service computation for this period of inactive service confirms that it equates to 13 days of inactive service.  The evidence of record also shows the applicant entered active duty in the RA on 27 February 1976 and was honorably discharged on 13 April 1978.  A service computation for this period of active service in the RA confirms that it equates to 2 years, 1 month, and 17 days of active service.  It is noted that the applicant’s military personnel records are absent a DD Form 214 for this period of active service.  However, the evidence of record shows the applicant was issued an NA Form 13038 which documents he was a member of the RA from 27 February 1976 to 13 April 1978 and that his service was terminated by honorable discharge.

6.  The evidence of record shows that Army Regulation 635-5, in effect at the time of the applicant's discharge (on 13 April 1978) for immediate reenlistment, prescribed that the DD Form 214 must be prepared, in pertinent part, for individuals on discharge for immediate reenlistment.  The evidence of record also shows that Army Regulation 635-5, with an effective date of 1 October 1979, in pertinent part, ended the need to prepare the DD Form 214 for enlisted members who are discharged for immediate reenlistment in the RA.

7.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  In this instance, the presumption of regularity is based on Army Regulation 635-5, in effect at the time of the applicant's discharge on 13 April 1978 for immediate reenlistment.  Thus, in the absence of evidence to the contrary, the presumption is that the applicant was issued a DD Form 214 for the period of his RA service from 27 February 1976 through 13 April 1978.

8.  The evidence of record shows the applicant reenlisted in the RA on 14 April 1978 and he continued to serve on active duty in the RA until he was honorably retired from active duty on 31 March 1994.  A service computation for this period of active service reveals that it equates to 15 years, 11 months, and 17 days of active service.  Records show the applicant’s DD Form 214 with an effective date of 31 March 1994 shows he completed 15 years, 11 months, and 16 days of net active service this period.  Therefore, it would be appropriate to correct the applicant’s DD Form 214 to show he completed 15 years, 11 months, and 17 days of net active service this period.

9.  A review of the applicant’s prior active service in the USMC from 19 March 1969 through 18 March 1971 (i.e., 2 years) and in the RA from 27 February 1976 through 13 April 1978 (i.e., 2 years, 1 month, and 17 days) shows that this prior active service totals 4 years, 1 month, and 17 days.  Records show that the applicant's DD Form 214 with an effective date of 31 March 1994 documents that he was credited with completing 4 years, 1 month, and 17 days of total prior active service.  Thus, records show the applicant’s DD Form 214 correctly and accurately documents his total prior active service.  Therefore, he is not entitled to correction of his records in this instance.

10.  A review of the applicant’s total active service in the USMC from 19 March 1969 through 18 March 1971 (i.e., 2 years), in the RA from 27 February 1976 through 13 April 1978 (i.e., 2 years, 1 month, and 17 days), and in the RA from 14 April 1978 through 31 March 1994 (i.e., 15 years, 11 months, and 17 days) shows that this active service totals 20 years, 1 month, and 4 days.  Records show that the applicant's DA Form 2339 and DA Form 3713 document that he was credited with completing 20 years, 1 month, and 4 days of total active Federal service for voluntary retirement.  Thus, the applicant’s records correctly document his total active service for voluntary retirement.  Therefore, he is not entitled to correction of his records in this instance.

11.  A review of the applicant’s inactive service in the USMCR from 10 March 1969 through 18 March 1969 (i.e., 9 days), in the USMCR Forces (Class III) from 19 March 1971 through 9 March 1975 (i.e., 3 years, 11 months, and 21 days), and in the USAR from 14 February 1976 to 26 February 1976 (i.e., 13 days) 


reveals that this inactive service totals 4 years, 0 months, and 13 days.  However, the applicant’s DA Form 2339, dated 13 July 1993, shows he was credited with completing 4 years, 11 months, and 8 days of total inactive service in the USAR.  As a result, the applicant's DD Form 214 with an effective date of 31 March 1994 was prepared to show he was credited with completing 4 years, 11 months, and 8 days of total prior inactive service.  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 31 March 1994 to show a reduction in the applicant’s total prior inactive service and/or total service for pay.

12.  It is noted that the applicant’s military personnel records confirm that he completed 18 years, 1 month, and 4 days of active service in the RA.  However, the evidence of record is clear in that the applicant’s net active service in the RA is properly and (upon correction as outlined in paragraph 8, above) accurately documented on his DD Form 214 with an effective date of 31 March 1994.  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 31 March 1994 to show he completed more than 18 years of net active service in the RA.

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 deleting from item 12, block c, of his DD Form 214 with an effective date of 31 March 1994 the entry "15  11  16" and adding to item 12, block c, the entry "15  11  17."

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 correcting the applicant’s DD Form 214 to show he completed more than 18 years of net active service in the Regular Army.



      ___________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)                                         AR20090003227



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003227



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1