BOARD DATE: 29 December 2009
DOCKET NUMBER: AR20090011497
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 that his 3 February 1992 DD Form 214 (Certificate of Release or Discharge from Active Duty), item 12b (Separation Date This Period), be changed to 5 February 1992.
2. The applicant states that he did not have a break in service between Regular Army and his enlistment in the Minnesota Army National Guard (MNARNG). Additionally, he offers that his separation orders show his separation date as
5 February 1992.
3. The applicant provides a copy of his separation orders, DD Form 214, and Enlistment/Reenlistment Documents.
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 applicants military records during his period of active duty service in the Regular Army are not available to the ABCMR for review. However, there were sufficient documents remaining for the ABCMR to conduct a fair and impartial review of this case.
3. Records available to the Board show that the applicant enlisted in the Regular Army on 15 August 1988. He served 3 years, 7 months, and 10 days and was honorably released from active duty on 3 February 1992, as listed in Item 12b of his DD Form 214.
4. Orders 16-49, dated 16 January 1992, show that the applicant was reassigned to the transition point on 30 January 1992. His date of release from active duty was listed as 5 February 1992 unless changed or rescinded.
5. The applicant's Enlistment/Reenlistment documents show that he enlisted in the MNARNG on 6 February 1992.
6. Information provided by the Defense Finance and Accounting Service (DFAS) verified that the applicant's last date of pay was 3 February 1992.
7. Army Regulation 635-5 (Personnel Separations) establishes standardized procedures for preparation and distribution of the DD Form 214. The regulation states, in pertinent part, to enter in block 12b the Soldier's transition date. This date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended to makeup for lost time, or retained on active duty for the convenience of the Government.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant argues that he was separated on 5 February 1992 instead of 3 February 1992, he has provided no evidence to support his claim. Information obtained from DFAS show that the applicant's last date of pay was
3 February 1992. Therefore, his separation orders and his enlistment documents are not sufficient evidence to justify changing his date of separation.
2. In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.
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.
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