IN THE CASE OF:	  

		BOARD DATE:	       30 JULY 2009

		DOCKET NUMBER:  AR20090003330 


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 to item 12a (Date Entered Active Duty This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 22 July 1991, to show 23 August 1979.

2.  The applicant states, in effect, that his DD Form 214 only shows his record of service from his reenlistment date in 1983 to his separation date in 1991.  He needs his DD Form 214 corrected because he is now a Federal employee and he wants to buy back his military service time from August 1979 to July 1991.  He needs his DD Form 214 to show all the time he served in the military.

3.  In support of his application, the applicant provides a copy of his DD Form 214.

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 record shows he enlisted in the United States Army Reserve (USAR) Delayed Entry Program (DEP) in pay grade E-1 on 18 November 1978 for 6 years.  He was separated from the USAR on 22 August 1979.  He completed a total of 9 months and 5 days of service in the USAR DEP.

3.  The applicant enlisted in the Regular Army (RA) in pay grade E-1 on 23 August 1979 for 4 years.  He was released from active duty for the purpose of immediate reenlistment on 28 February 1983.  He reenlisted in the RA on 1 March 1983 and on 10 October 1995.  He was honorably discharged from active duty in pay grade E-5 on 22 July 1991 for physical disability with severance pay.

4.  The applicant was issued a DD Form 214 that shows in item 12a he entered active duty on 1 March 1983.  Item 12c (Active Service This Period) shows he was credited with completing 8 years, 4 months, and 22 days of net active service from 1 March 1983 to 22 July 1991.  Item 12d (Total Prior Active Service) shows he was credited with 3 years, 6 months, and 8 days [sic] of total prior active service for his service from 23 August 1979 to 28 February 1983.  Item 12e (Total Prior Inactive Service) shows he was credited with 9 months and 5 days of total prior inactive service for his service in the USAR.

5.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated, in pertinent part, that a DD Form 214 would be prepared for all personnel at the time of retirement, discharge, or release from active duty.  The beginning date of the enlistment period or tour of active duty for which a DD Form 214 was not issued would be entered in item 12a.  The separation date would be entered in item 12b (Separation Date This Period).  Item 12c would contain the total amount of service time for the period covered by the DD Form 214.  Item 12d would contain the total amount of prior active military service, less lost time.  Item 12e would contain the total amount of prior inactive military service (i.e., DEP, USAR, and Army National Guard service), less lost time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, the DD Form 214 that he was issued on 22 July 1991 should reflect that he served on active duty from 23 August 1979 to 22 July 1991.  The evidence of record shows that the applicant served in the USAR DEP from 18 November 1979 to 22 August 1979.  He enlisted in the RA and entered on active duty on 23 August 1979.  He was discharged from active duty for the purpose of immediate reenlistment on 28 February 1983.  He reenlisted in the RA on 1 March 1983 and again on 10 October 1985 and served continuously until the time of his separation for the purpose of retirement on 22 July 1991.  At the time of his separation in July 1991 he was issued a DD Form 214 that shows he entered active duty on 1 March 1983 and a credit of 8 years, 4 months, and 22 days for his service from 1 March 1983 to 22 July 1991.  This DD Form 214 also shows a credit of 3 years, 6 months, and 8 days of total prior active service for his service from 23 August 1979 to 28 February 1983.  This DD Form 214 further shows he was credited with 9 months and 5 days of total prior inactive service for his service in the USAR.

2.  In accordance with regulatory guidance, item 12a would list the beginning date of the applicant's enlistment period for which a DD Form 214 was not issued.  Therefore, based on the foregoing, the applicant is entitled to correction to item 12a of his DD Form 214, dated 22 July 1991, to show he entered active duty on 23 August 1979.  He is also entitled to correction to item 12c to show a credit of 11 years and 11 months of net active service and item 12d to show zero credit for prior active service.

3.  In view of the foregoing, the applicant’s records should be corrected 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 the Department of the Army records of the individual concerned be corrected by amending the applicant's DD Form 214 for the period ending 22 July 1991:

	a.  in item 12a to show he entered active duty on 23 August 1979,

	b.  in item 12c to show a credit of 11 years and 11 months,

	c.  in item 12d to show "00 00 00," and

	d.  by providing the applicant a corrected separation document that includes these corrections.



      ___________XXX______________
                 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)                                         AR20090003330



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ABCMR Record of Proceedings (cont)                                         AR20090003330



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