BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090009131 


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 his date of release from active duty for training (ADT) shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant essentially states that he contracted pneumonia during the latter part of his basic training and he was hospitalized in a military facility.  He also states that he was transferred to another unit after his release from the hospital that extended his training an additional 4 to 7 weeks beyond the
6 months he was ordered to ADT for.  However, he claims that upon his release from ADT, his commanding officer did not want to show a record of him being detained for an extra amount of time due to sickness because he did not want any unit records showing his history of extended detainment and also wanted to protect the completion of problem-free service within the unit with no glitches.

3.  The applicant provides a letter, dated 24 April 2009, from the Army Board for Correction of Military Records (ABCMR); his DD Form 214; an undated letter from the XXI United States Army Corps, Indiantown Gap Military Reservation, Annville, PA, with an attached, although mostly illegible, Honorable Discharge Certificate; and a previously submitted DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) 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 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 majority of the applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the majority of the applicant's records were lost or destroyed in that fire.  However, the available records and documents submitted by the applicant provided a sufficient amount of documents to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows that he was ordered to ADT on 22 March 1958, with 4 years and 27 days of prior service, none of which was prior active service.  This document also shows that he was released from ADT on 
21 September 1958 after having completed 6 months of ADT.  The applicant authenticated this document with his signature, attesting to the accuracy of the information contained on this form.  This document was also authenticated by a commissioned officer who was serving as an Assistant Adjutant General at Fort Leonard Wood, MO.

4.  There is no evidence in the available records which show that the applicant remained on ADT beyond 21 September 1958.

5.  The available records show that the applicant was admitted to the U.S. Army Hospital, Fort Leonard Wood in May 1958 for an acute upper respiratory infection, and that he was hospitalized for 8 days.  It also shows that he was returned to full duty after his release from the hospital.

6.  Army Regulation 635-5 (Separation Documents) provides the regulatory guidance for the issuance and preparation of the DD Form 214.  It has consistently provided that a Soldier's actual date of release from active duty would be entered.  This date may not be the contractual date if a Soldier is separated early, voluntarily extends, is extended for make-up of lost time, or retained on active duty for the convenience of the Government.
7.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his date of release from ADT shown on his 
DD Form 214 should be changed.

2.  It is clear that the applicant was hospitalized in May 1958 for a period of 
8 days due to an acute respiratory infection.  However, there is no evidence in the available records, and the applicant failed to provide any evidence which conclusively proves, by a preponderance of the evidence, that he remained on ADT beyond 21 September 1958 as he claims.  Regrettably, in view of the foregoing, there is no basis for granting the applicant's requested relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x____  ___x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the 


United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      _________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)                                         AR20090009131



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ABCMR Record of Proceedings (cont)                                         AR20090009131



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