IN THE CASE OF:	

		BOARD DATE:	16 July 2009    

		DOCKET NUMBER:  AR20090003246 


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 (Certificate of Release or Discharge from Active Duty) to show the time he spent on active duty as creditable active service.

2.  The applicant states, in effect, that although he served on active duty for two years, his DD Form 214 shows his net active service as only eight days.  The applicant further states that following completion of basic training, he was stationed in Germany.  

3.  The applicant provides a copy of his DD Form 214 as documentary evidence in support of this 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 record shows he enlisted in the Regular Army on 10 March 2000.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3; however, at the time of his discharge, he held the rank/grade of private (PV2)/E-2.

3.  On 20 November 2001, the applicant's unit commander advised him that he was initiating action to separate him for Erroneous Enlistment under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 7-15 (Erroneous Enlistments, Re-enlistments, or Extensions).  The commander stated that the reasons for his proposed action was the fact that an ASVAB (Army Skills and Vocational Aptitude Battery) test taken by someone other than the applicant was used as a basis for his enlistment into the Army and the applicant had signed an official document claiming that the test had been taken by himself.  The commander also informed the applicant that he was recommending him for an Honorable Discharge, but the final decision would be made by the separation authority.  The applicant was also informed of his rights to consult with legal counsel, to submit written statements in his behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, or to waive the aforementioned rights.  The applicant acknowledged receipt of the notification and consulted with legal counsel on the same date.

4.  On 21 November 2001, the unit commander recommended that the applicant be separated from the Army under the provisions of Army Regulation 635-200, chapter 7-15, prior to the expiration of his term of service for Erroneous Enlistment.  On 26 November 2001, the battalion commander concurred with the unit commander's recommendation.  Subsequently, the separation authority directed the applicant’s separation under the aforementioned regulatory provisions.

5.  Headquarters, U.S. Army, Europe, Giessen Transition Center, Germany, Orders 344-002, dated 10 December 2001, discharged the applicant from the Regular Army, effective 13 December 2001.

6.  Item 12a of the applicant's DD Form 214 shows he entered active duty on 10 March 2000.  Item 12b shows he was separated on 13 December 2001.  Item 12c shows the applicant's net active service for this period as 0 years, 0 months, and 8 days.  Item 25 shows the separation authority was chapter 7, Section III of Army Regulation 635-200.  Item 28 shows the narrative reason for separation was Erroneous Entry.

7.  Army Regulation 635-200, in effect at the time, provided that a Soldier could be separated on the basis of an erroneous enlistment, induction, or extension of enlistment.  An enlistment, induction, or extension of enlistment is erroneous if it would not have occurred had the relevant facts been known by the Government or had appropriate directives been followed; it was not the result of fraudulent conduct on the part of the Soldier; and the defect was unchanged in material respects.  When it was discovered that a Soldier's enlistment or extension was erroneous because he/she failed to meet the qualifications for enlistment or re-enlistment, the unit commander would initiate action to obtain authority to retain, discharge, or release the Soldier from active duty based upon erroneous enlistment or extension.  The regulation also provided that the separation authority would prepare and distribute a DD Form 214 in accordance with paragraph 2-7d of Army Regulation 635-5 (Separation Documents).

8.  Army Regulation 635-5, in effect at the time, governed the preparation of the DD Form 214.  It stipulated, in pertinent part, that the DD Form 214 would be prepared for all enlisted personnel ordered or called to active duty at the time of their release from active duty or discharge.  The date the Soldier entered active duty status would be entered in Item 12a.  The last date of active duty would be entered in Item 12b.

9.  The total active service completed between the dates of the current tour of duty would be entered in Item 12c.  All prior active service would be entered in Item 12d.  This would include any period of active service in the USAR or ARNG.
All prior inactive service would be entered in Item 12e.  This would include any period of active service in the USAR or ARNG.  DEP time which began before 1 January 1985 was creditable for pay purposes and would be included in the time entered in Item 12e.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show the time he spent on active duty as creditable active service was carefully considered and determined to have merit.

2.  Records show that the applicant's enlistment was determined to be erroneous, and he was subsequently discharged. 

3.  In accordance with regulatory guidance, the period of time the applicant served under an erroneous enlistment is considered to be creditable service.
As such, he is entitled to a correction of his DD Form 214 to show the time he 
spent on active duty as creditable active service.  Item 12c of the applicant's DD Form 214 should contain the entry "0001 09 04" to indicate a total of 1 year,
9 months, and 4 days of net active service during the period of his enlistment. 

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 the applicant be issued an appropriate document showing that Item 12c of his DD Form 214 should contain the entry "0001 09 04" to indicate a total of 1 year, 9 months, and 4 days of net active service during the period of his enlistment.

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 amending his DD Form 214 to show he served on active duty for two years.




      _______ _   __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)                                         AR20090003246



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ABCMR Record of Proceedings (cont)                                         AR20090003246



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