IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20090003514 


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 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 1 March 1968 to show his date of induction on 31 (sic) August 1961.  He also requests correction of his DD Form 214 to show his disability rating of 50 percent.  

2.  The applicant states that the DD Form 214 he received when he was placed on the Temporary Disability Retired List (TDRL) does not indicate his first induction into the Army on 31 (sic) August 1961.  He states that his DD Form 214 incorrectly reflects the 70 percent disability rating he received while he was on the TDRL and not the final 50 percent disability rating he received when he was removed from the TDRL.  He continues to state that the date of entry on his DD Form 214 shows the last date he reenlisted.  The "Date Inducted" incorrectly indicates "NA" on his DD Form 214.

3.  The applicant provides the following documents in support of his application: his DD Form 214 for the period ending 1 March 1968; Special Order Number 211, dated 29 October 1970; Special Orders Number 174, dated 30 August 1961; and Special Orders Number (illegible), dated 23 February 1968, which placed him on the TDRL.  






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 was inducted into the Army of the United States on 30 August 1961 and was discharged on 14 March 1962 for immediate reenlistment.  He was issued a DD Form 214 for the period ending 14 March 1962 which shows he was inducted on 30 August 1961 and completed 6 months and 15 days of creditable service during this period.

3.  The applicant enlisted in the Regular Army on 15 March 1962 and was discharged on 12 May 1964 for immediate reenlistment.  He was issued a DD Form 214 for the period ending 12 May 1964 which shows he entered active duty on 15 March 1962 and completed 2 years, 1 month, and 28 days of creditable service during this period.   

4.  The applicant reenlisted on 13 May 1964 for a period of three years.

5.  He was evaluated by a Medical Evaluation Board (MEB) on 23 October 1967.  The MEB found he was medically unfit for further military service and referred him to a Physical Evaluation Board (PEB).  

6.  On 25 November 1967, a PEB determined the applicant was physically unfit for military service with a combined disability rating of 60 percent.  The PEB recommended the applicant be placed on the TDRL with reexamination during May 1969.  

7.  On 5 January 1968, the PEB proceedings, dated 25 November 1967, were amended to adjust the applicant's combined disability rating from 60 percent to 70 percent.  


8.  Headquarters, Department of the Army, Special Orders Number (illegible), paragraph 273, dated 23 February 1968, show the applicant was released from assignment and duty on 1 March 1968.  On the following day, he was placed on the TDRL with a disability rating of 70 percent.

9.  The applicant was issued a DD Form 214 for the period ending 1 March 1968 which shows he completed 3 years, 9 months, and 19 days net service during this period and 2 years, 8 months, and 13 days of other [prior] service.  

10.  Item 17c (Date of Entry) on the applicant’s DD Form 214 for the period ending 1 March 1968 shows the date he entered active duty this period as 13 May 1964.  Item 30 (Remarks) shows the entry "Disability:  70%."

11.  On an unknown date, the applicant was reevaluated by an MEB and was retained on the TDRL for reexamination in May 1970.  His reexamination by an MEB and/or PEB is not available.

12.  Special Order Number 211, paragraph 277, dated 29 October 1970, show the applicant was removed from the TDRL on 30 November 1970 and was permanently retired on 1 December 1970 with a disability rating of 50 percent.  

13.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In the version in effect at the time, it directed that the date entered active duty or date of enlistment or reenlistment will be entered in item 17c of the DD Form 214.  If the qualification record of an enlisted member of the Regular Army indicates that he was discharged from previous enlistment or enlistments and immediately reenlisted without being furnished a DD Form 214, the date entered in this item will be the earliest date not previously covered by a DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DD Form 214 he received when he was placed on the TDRL does not indicate his first induction into the Army of the United States on 31 (sic) August 1961 and that the date of entry on his DD Form 214 shows the last date he reenlisted.


2.  The applicant was inducted into the Army of the United States on 30 August 1961 and was discharged on 14 March 1962.  He was furnished a DD Form 214 which properly reflects this period of service.  

3.  The applicant served in the Regular Army from 15 March 1962 through 12 May 1964 and from 13 May 1964 through 1 March 1968.  He was furnished a DD Form 214 which properly covers both of these periods of service.   

4.  A copy of his first two DD Forms will be provided to the applicant.

5.  Based on Army Regulation 635-5, the date entered in item 17c will be the earliest date (enlistment or reenlistment) not previously covered by a DD Form 214.  Since the applicant was furnished a DD Form 214 which properly covers his period of induction, there is no basis for amending his DD Form 214 for the period ending 1 March 1968 to reflect his first induction on 30 August 1961.  

6.  The applicant contends that his DD Form 214 incorrectly reflects the 70 percent disability rating he received while he was on the TDRL and not the final 50 percent disability rating he received when he was removed from the TDRL.  

7.  The applicant was separated from active duty on 1 March 1968 and was placed on the TDRL with a disability rating of 70 percent.  He was removed from the TDRL on 30 November 1970 and was permanently retired on 1 December 1970 with disability rating of 50 percent.  

8.  Based on Army Regulation 635-5, the DD Form 214 is meant to reflect the applicant's status as of his last day of active duty on 1 March 1968.  As of that date, his physical disability rating was 70 percent.  Therefore, his DD Form 214 for the period ending 1 March 1968 properly reflects his disability rating of 70 percent.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      _______________________
               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)                                         AR20090003514



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ABCMR Record of Proceedings (cont)                                         AR20090003514



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