IN THE CASE OF:
BOARD DATE: 26 August 2009
DOCKET NUMBER: AR20090003956
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, that the entry date on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.
2. The applicant states, in effect, that he enlisted and entered active duty on 12 June 1979.
3. The applicant provides his DD Form 214 in support of his 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 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 record contains a DD Form 4 (Enlistment/Reenlistment Document) that shows he enlisted in the United States Army Reserve (USAR) Delayed Entry Program (DEP) on 19 July 1980.
3. The DD Form 4 also shows that on 10 June 1981, the applicant was discharged from the DEP, enlisted in the Regular Army (RA) for 4 years and entered active duty in that status. His record is void of any enlistment documents that indicate he ever performed military service prior to entry into the DEP on 19 July 1980, or any prior active duty military service prior to his entry into the RA on 10 June 1981.
4. The applicant's record shows he was trained in and awarded military occupational specialty (MOS) 63B (Light Vehicle/Power Generator Repairer) on
7 December 1981, and was advanced to private/E-2 (PV2), the highest rank he attained on active duty, on 10 December 1981. His DA Form 2 (Personnel Qualification Record-Part 1) lists his basic active service date (BASD) as 10 June 1981 in item 47 (BASD).
5. On 19 August 1982, the applicant was honorably released from active duty (REFRAD), in the rank of PV2, under the provisions of paragraph 5-31h(1),
Army Regulation 635-200, by reason of failure to maintain acceptable standards for retention under the expeditious discharge program (EDP). Item 12a (Date Entered AD This Period) of the DD Form 214 he was issued at the time contains an entry indicating he entered active duty on 10 June 1981. Item 12b (Separation Date This Period) shows he was separated on 19 August 1982, and item 12c (Net Active Service This Period) shows he completed 1 year, 2 months and
10 days of active military service.
6. Army Regulation 635-5 (Separation Documents) prescribes 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
establishes standardized policy for preparing and distributing the DD Form 214. Chapter 2 contains item-by-item instructions for preparing the DD Form 214. The instructions for item 12a are to enter the beginning date of the continuous period of active duty for issuance of a DD Form 214 for which a DD Form 214 was not previously issued. The instructions for Item 12b state, in pertinent part, to enter the Soldier's transition (separation) date, and Item 12c state to enter the amount of service this period, which is computed by subtracting Item 12a from Item 12b.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he entered active duty on 12 June 1979 was carefully considered. However, the evidence of record contains a DD Form 4 that shows he enlisted in the DEP on 19 July 1980, and was discharged from the DEP, enlisted in the RA, and entered active duty on 10 June 1981, as is listed in item 12a of his DD Form 214. This 10 June 1981 entry date is corroborated by the BASD entry in item 47 of his DA Form 2.
2. Further, the applicant's record is void of any documents or orders that indicate he completed any prior active military service prior to entering active duty on 10 June 1981, and the applicant has failed to provide any independent evidence confirming prior military service. As a result, there is an insufficient evidentiary basis to support granting the requested relief.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
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) AR20090003956
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ABCMR Record of Proceedings (cont) AR20090003956
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