IN THE CASE OF:
BOARD DATE: 17 September 2009
DOCKET NUMBER: AR20090007884
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 records to reflect the correct dates of his active duty service.
2. The applicant states he was on active duty for five years from 18 October 1977 to 1981.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of this 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 enlisted in the Regular Army (RA) on 18 October 1977.
3. On 15 December 1977, the applicant was notified by his unit commander that action was being initiated to separate him under the provisions of the Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), paragraph
5-39 (Trainee Discharge Program (TDP)). The unit commander cited the reasons for the proposed action as the applicant's lack of motivation and arrogant attitude.
4. On 15 December 1977, the applicant acknowledged notification of the proposed separation action with the understanding that due to non-completion of requisite active duty time, Veterans Administration (VA) and other benefits normally associated with completion of honorable active duty service would be affected. The applicant indicated that he did not desire to make a statement or rebuttal in his own behalf and he did not desire to have a separation medical examination if his discharge was approved.
5. On the same date, the applicant's separation packet was forwarded to the intermediate commander, who in turn, recommended approval of the separation action and forwarded the action to the separation authority with a request to expedite.
6. On 16 December 1977, the separation authority approved the recommendation for separation with issuance of an Honorable Discharge Certificate. Accordingly, on 23 December 1977, the applicant was discharged having served 2 months and 6 days of total active service this period.
7. Army Regulation 635-200 (Personnel Separations Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel from the Army. Paragraph 5-39 of this regulation, in effect at the time, governed the TDP. This program provided for the separation of service members who lacked the necessary motivation, discipline, ability, or aptitude to become productive Soldiers or have failed to respond to formal counseling while in entry level status.
8. Army Regulation 635-200 provides, in pertinent part, that entry level status is defined as the first 180 days of continuous active military service. For members of a Reserve Component who have not completed 180 days of continuous active military service and who are not on active duty, entry level status begins upon enlistment in a Reserve Component (including a period of assignment
to a delayed entry program) and terminated 180 days after beginning an initial
period of entry level active duty training. For purposes of characterization of service or description of separation, the member's status is determined by the date of notification to the member as to the initiation of separation proceedings.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he served on active duty for five years has been carefully reviewed and found to be without merit.
2. Available evidence shows the applicant was discharged on 23 December 1977 after completing 2 months and 6 days of total active service.
3. There is no evidence in the available records and the applicant did not provide any documentation showing that he served on active duty beyond 23 December 1977. As a result, there is no basis 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) AR20090007884
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ABCMR Record of Proceedings (cont) AR20090007884
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