BOARD DATE: 19 November 2009
DOCKET NUMBER: AR20090008633
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 of block 12a (Date Entered [Active Duty] This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he entered active duty in 1978, not 1979.
2. The applicant states he believes he entered the Army in 1978.
3. The applicant provides a copy of his DD Form 214.
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 records show he enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years on 13 March 1978. On 17 April 1979, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 18 April 1979.
3. The DEP is a program wherein individuals entering active duty in the United States Armed Forces enlist first into the DEP before they report to basic training. This is a legally binding contract, an enlistment into the inactive Reserve, with an agreement to report to a training station (the location of one's basic training) by a certain date.
4. 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 establishes standardized policy for preparing and distributing the DD Form 214. The regulation in effect at the time specified that block 12a would contain the beginning date of the period of active duty. Time in the DEP is not active duty.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests his DD Form 214 be corrected to show he entered active duty in 1978.
2. The applicant entered the DEP in 1978; he entered active duty on 18 April 1979. His DD Form 214 is correct.
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) AR20090008633
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ABCMR Record of Proceedings (cont) AR20090008633
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