IN THE CASE OF:	

		BOARD DATE:	10 September 2009  

		DOCKET NUMBER:  AR20090006046 


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 the service entry date on his DD Form 214 (Certificate of Report of Separation from Active Duty), dated 30 September 1991.

2.  The applicant states, in effect, his 1991 DD Form 214 shows he entered on active duty on 13 March 1979 and it should show he entered on active duty on 28 January 1970.  He also states that he was in the Delayed Entry Program (DEP) beginning in October 1969.  He further states, in effect, after his ex-wife destroyed his records he only has the 1991 DD Form 214 in his possession.  He is sure most of his records were burned in the 1973 fire in the Pentagon. 

3.  In support of his application, the applicant provides copies of his DA Form 2-1 (Personnel Qualification Record – Part II), his 1969 enlistment contract, 1972 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his Leave and Earnings Statement for the period from 1 to 30 June 1972, his 1979 DD Form 214 (Report of Separation from Active Duty), his DA Form 2339 (Application for Voluntary Retirement), and his 1991 DD Form 214 and separation orders. 

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 records show he enlisted in the United States Army Reserve (USAR) Control Group DEP on 7 October 1969.  He enlisted in the Regular Army, in pay grade E-1, on 28 January 1970, for 3 years.  He was honorably discharged on 4 September 1972, for the purpose of immediate reenlistment.  He was issued a DD Form 214, that shows in Item 17c (Date of Entry) the date 8 January 1970.  He was credited with 2 years, 7 months, and 7 days of net active service.  He was also credited with 3 months and 22 days of other service (DEP time).

3.  The applicant reenlisted in the Regular Army, in pay grade E-4, on 5 September 1972, for 6 years.  He was honorably discharged on 11 March 1979, for the purpose of immediate reenlistment.  He was issued a DD Form 214, that shows in Item 15 (Date Entered Active Duty This Period) the date 5 September 1972.  He was credited with 6 years, 6 months, and 7 days of net active service.  He was also credited with 2 years, 7 months, and 7 days of prior active service and 9 years, 1 month, and 14 days of total active service.  He was further credited with 3 months and 21 days of total prior inactive service (DEP time).

4.  The applicant reenlisted in the Regular Army, in pay grade E-5, on 12 March 1979 for 3 years.  He served continuously on active duty through several reenlistments until he was honorably separated on 30 September 1991, for length of service for retirement.  He was issued a DD Form 214, that shows in Item 12a (Date Entered Active Duty This Period) the date 12 March 1979.  He was credited with 12 years, 6 months, and 19 days of net active service.  He was also credited with 9 years, 1 month, and 14 days of prior active service and 3 months and 1 day of total prior inactive service (DEP time).

5.  Item 18 (Remarks) of the applicant's DD Form 214 shows he reenlisted on 12 March 1979, 31 March 1983, and 22 February 1989.  



6.  Army Regulation 635-5 (Personnel Separation – Separation Documents), each regulation in effect at the time, governed the preparation of the DD Form 214.  They stated, in pertinent part, that the DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The date the Soldier entered on active duty status would be entered [his current enlistment would be entered] in Item 12a and 17c, accordingly.    

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to correction of Item 12a of his DD Form 214, dated 30 September 1991.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The evidence shows the applicant enlisted in the USAR Control Group DEP on 7 October 1969 and reenlisted in the Regular Army and entered on active duty on 28 January 1970, his first enlistment.  He was discharged for immediate reenlistment on 4 September 1972 and provided a DD Form 214.  His time in the USAR DEP is properly shown on this DD Form 214.

3.  The evidence also shows the applicant reenlisted on 5 September and served through 11 March 1979 and was provided a DD Form 214 for this period of service.  He reenlisted again on 12 March 1979 and served continuously until his discharge on 30 September 1991. He was also provided a DD Form 214 to cover this period of service. 

4.  In accordance with regulatory guidance, Item 12a, of the applicant's 30 September 1991 DD Form 214, would list the date he entered on active duty and would show all time he served in the active Army for the period covered by the DD Form 214.  This DD Form 214 covered his period of service from his reenlistment on 12 March 1979 through his discharge for length of service on 30 September 1991.  Therefore, he is not entitled to a correction of this DD Form 214, Item 12a, to show he entered on active duty on 28 January 1970.

5.  The evidence of record supports the fact that the applicant's first enlistment and entry on active duty was actually on 28 January 1970.  He was provided a DD Form 214, dated 4 September 1972, showing he entered on active duty on 8 January 1970.  Based on the evidence, he is entitled to a correction to Item 17c of his DD Form 214, dated 4 September 1972, to show he entered on active duty on 28 January 1970.  

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

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 all the Department of the Army records of the individual concerned be corrected by amending Item 17c of the applicant's DD Form 214, dated 4 September 1972, to show he entered on active duty on 28 January 1970 and providing the applicant a corrected separation document.

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 to amending Item12a of the applicant's DD Form 214, dated 30 September 1991, to show he entered on active duty on 28 January 1970.




      _______ _   _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)                                         AR20090006046





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ABCMR Record of Proceedings (cont)                                         AR20090006046



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