IN THE CASE OF:	  

		BOARD DATE:	         17 September 2009

		DOCKET NUMBER:  AR20090007588 


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 to Item 12a (Date Entered Active Duty (AD) This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that his enlisted date on his DD Form 214 is incorrectly listed as 2 May 1979.  It should be listed as 7 July 1977.

3.  The applicant provides a copy of his DD Form 214 for the period ending
5 May 1988; a DA Form 4188 (Military Personnel Office/Finance Office Verification of MPRJ [Military Personnel Records Jacket] and PFR [Personal Financial Record]); and page 4 of a DD Form 4 (Enlistment or Reenlistment Agreement, dated 3 August 1977 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 that he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 7 July 1977, and that he served in that status through 2 August 1977.  It also shows that he was discharged from the USAR DEP and enlisted in the Regular Army (RA) for 4 years on 3 August 1977, and his DA Form 2-1 (Personnel Qualification Record) confirms, in item 35 (Record of Assignments), that he entered active duty on 3 August 1977.

3.  The record further shows that on 1 May 1979, the applicant was honorably discharged for the purpose of immediate reenlistment and on 2 May 1979, he reenlisted in the RA and remained on active duty in that status.  The DD Form 214 for his initial period of active duty service from 3 August 1977 through 1 May 1979 is not on file in his record.  

4.  On 2 May 1979, the applicant reenlisted in the RA and remained on active duty in that status.  He continuously served until 5 February 1988, at which time he was honorably released from active duty at the expiration of his term of service.  He was subsequently transferred to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation.  The DD Form 214 for the period ending 5 February 1988 shows in Item 12a that he entered active duty this period on 2 May 1979.  Item 12c (Net Active Service This Period) shows he completed 8 years, 9 months, and 4 days and item 12d (Total Prior Active Service) shows he had completed 1 year, 8 months, and 28 days of prior active duty service.  Item 12e (Total Prior Inactive Service) contains an entry showing he completed 26 days of prior inactive service.  Item 18 (Remarks) shows the entry "Enlistment this Period:  790502-820705."

5.  The applicant provides an extract of a DD Form 4, which shows he initially enlisted in the USAR DEP on 7 July 1977 and that he served in that status until he was discharged from the USAR DEP on 2 August 1977 for the purpose of enlisting in the RA for 4 years, effective 3 August 1977.  

6.  Army Regulation 635-5 prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  

7.  Chapter 2 of this regulation contains item-by-item instructions for completing the DD Form 214.  The instruction for Item 12, (Record of Service) specifies, in pertinent part, that the following entries will be made in the items indicated:  item 
12a will be the date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued; item 12c will be the amount of service this period, computed by subtracting item 12a from 12b (Separation Date This Period); item12d will be the total amount of prior active military service; and item 12e will be the total amount of prior inactive service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Item 12a of his DD Form 214 for the period ending 5 February 1988 should be corrected to read 7 July 1977 has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant initially enlisted in the USAR DEP on 7 July 1977, and that he served in that inactive status for 26 days until being discharged from the USAR DEP on 2 August 1977.  It further confirms he initially enlisted in the RA and entered active duty on 3 August 1977, and that he served in that status for 1 year, 8 months, and 28 days until being honorably discharged for the purpose of immediate reenlistment on 1 May 1979.  It also shows that on 2 May 1979, he reenlisted and began the period of active duty service covered by his 5 February 1988 DD Form 214.  

3.  The applicant's DD Form 214 for the period ending 5 February 1988 covers the enlistment period from 2 May 1979 to 5 February 1988, which is confirmed by the enlistment period entry in item 18.  As a result, the 2 May 1979 entry in item 12a of the DD Form 214 is the actual date he entered the period of enlistment covered by this DD Form 214 and is therefore accurate. 

4.  Item 12d of the applicant's DD Form 214 for the period ending 5 February 1988 confirms he completed 1 year, 8 months, and 28 days of total prior active duty service, which accurately accounts for his initial active duty enlistment period from 3 August 1977 through 1 May 1979, and item 12e accurately accounts for the 26 days of inactive service he completed in the USAR DEP between 7 July 1977 through 2 August 1977.  As a result, although there is no DD Form 214 on file for this initial enlistment period, it must be presumed one was initially issued, and given the DD Form 214 for the period ending 5 February 1988 accurately accounts for all of his active and inactive service, there is no apparent error or injustice related to the record of service data contained in item 12 of his DD Form 214 for the period ending 5 February 1988.  Therefore, there is an insufficient evidentiary basis to support granting the applicant's requested relief. 


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)                                         AR20090007588



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ABCMR Record of Proceedings (cont)                                         AR20090007588



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