IN THE CASE OF:	  

		BOARD DATE:	       18 AUGUST 2009

		DOCKET NUMBER:  AR20090004821 


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 Item 12b (Separation Date this Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he was separated in 1987 vice 1986, as is currently entered.   

2.  The applicant states, in effect, his DD Form 214 shows his discharge year as 1986 instead of 1987, and it is his belief this was the result of a typographical error made during the preparation of his DD Form 214.  He indicates he did not notice the error until he applied for health care benefits.

3.  The applicant provides no documentation 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 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 initially enlisted in the United States Army Reserve (USAR) Delayed Entry Program (DEP) for a period of 8 years on         21 September 1984.  

3.  On 29 August 1985, the applicant was discharged from the DEP and enlisted in the Regular Army for a period of 3 years.  It also shows he was trained in and awarded military occupational specialty 45K (Tank Turret Repairer) and that the highest rank he attained while serving on active duty was private/E-2 (PV2/E-2).

4.  The applicant's record shows that during his tenure on active duty, he earned the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar. 

5.  On 8 January 1986, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a noncommissioned officer (NCO).  His punishment for this offense was 14 days of extra duty and restriction.  

6.  On 20 February 1986, the applicant accepted NJP for absenting himself from his unit without authority.  His punishment for this offense was 14 days of extra duty and restriction.  

7.  On 22 July 1986, the applicant accepted NJP for failure to go at the time prescribed to his appointed place of duty.  His punishment for this offense was a reduction to private (PV1)/E-1, a forfeiture of $319. 00 pay for 2 months, and 
45 days of extra duty.  

8.  On 18 August 1986, the unit commander prepared a Bar to Reenlistment Certificate on the applicant.  The reason cited for this action was the applicant's record of NJP and his inability to adapt to military life, frequent difficulties with fellow Soldiers, and his personal behavior.  The applicant acknowledged receipt of this action and elected neither to appeal the action nor to submit a statement in his own behalf.  On 19 August 1986, the approving authority approved the applicant's Bar to Reenlistment.

9.  On 6 November 1986, the applicant accepted NJP for wrongfully leaving the scene of an accident.  His punishment for this offense was a forfeiture of $149.00 pay and 14 days of extra duty and restriction (suspended). 

10.  On 12 November 1986, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of Chapter 13, Army Regulation 635-200, for unsatisfactory performance.  The unit commander stated his reason for taking this action was, in effect, the applicant's NJP record, apathy, his poor appearance, and poor performance of duty.  

11.  On 12 November 1986, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  Subsequent to this counseling, he waived consideration of his case and a personal appearance before an administrative separation board, and his right to consulting counsel.  He also elected not to submit a statement in his own behalf.  

12.  On 12 November 1986, the separation authority approved the separation action and directed that the applicant receive a general discharge.  

13.  Headquarters, U.S. Army Training Center and Fort Dix, Orders Number 
29-253, dated 25 November 1986, directed that the applicant be discharged on 
25 November 1986.  The DD Form 214 he was issued at the time shows he was discharged, in the rank of PV1/E-1, under the provisions of Chapter 13, 
Army Regulation 635-200, by reason of unsatisfactory performance.  Item 12b (Separation Date this Period) contains the entry "86 11 25" which indicates he was discharged on 25 November 1986, and Item 12c (Net Active Service this Period) contains the entry "1  2  26" which indicates he completed a total of 
1 year, 2 months, and 26 days of creditable active military service.  

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

15.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon discharge from active military service.  It establishes standardized policy for the preparation of the DD Form 214.  It states, in pertinent part, that item 12b will show the Soldier's transition date.  This date may not be the contractual date if the Soldier is separated early, voluntarily extends, or is extended for make-up of lost time, or retained on active duty for the convenience of the government.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the year he was separated is incorrectly listed as 1986 and should be 1987 in item 12b of his DD Form 214 has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that the applicant's discharge for unsatisfactory performance was approved on 12 November 1986, as evidenced by his separation packet, and that his discharge was directed on 25 November 1986, as evidenced by the separation orders on file in his record.  As a result, there appears to be no error or injustice related to the entry in item 12b of his DD Form 214 which correctly shows he was separated on 25 November 1986.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case.  

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.



      _______ _   _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)                                         AR20090004821



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ABCMR Record of Proceedings (cont)                                         AR20090004821



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