IN THE CASE OF:	

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090013468 


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 item 12a (Date Entered AD [Active Duty] This Period), 12b (Separation Date This Period), 12c (Net Active Service This Period), and 12d (Total Prior Active Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending
2 December 1987.

2.  The applicant states, in effect, that his active duty service is incorrect on this DD Form 214.  He contends that the DD Form 214 shows he completed 11 years and 2 months.  He has two tours of duty (15 August 1978 to 15 August 1981 and 26 November 1985 to 5 December 1987).  AFEES [Armed Forces Examining and Entrance Station] records have his correct time of service.  He also states that he is trying to reenter the service and he needs this DD Form 214 corrected to show his accurate time served.

3.  The applicant provides correspondence from a Member of Congress 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 enlistment contract shows he enlisted in the Regular Army (RA) on 16 August 1978 for a period of 3 years.  He served in military occupational specialty (MOS) 11B (infantryman) and he was released from active duty on 14 August 1981 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 2, by reason of completion of required service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.

3.  Item 12c on the applicant's DD Form 214 for the period ending 14 August 1981 shows he completed 2 years, 11 months, and 29 days of net active service this period.

4.  The applicant's second enlistment contract shows he enlisted in the RA on
26 November 1985 for a period of 3 years.  He extended his enlistment on 
5 January 1987 for a period of 16 months.  He was subsequently retired on
2 December 1987 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(2), by reason of physical disability (temporary).  He was placed on the Temporary Disability Retired List (TDRL) on the following day.

5.  Item 12a of the applicant's DD Form 214 for the period ending 2 December 1987 shows the entry "85 11 25" [25 November 1985].  Item 12b of his DD Form 24 shows the entry "87 12 02" [2 December 1987].  Item 12c of his DD Form 214 shows he completed 2 years and 7 days.  Item 12d of his DD Form 214 shows he had 2 years, 11 months, and 29 days of total prior active service.

6.  U.S. Army Military Personnel Center, Alexandria, VA, Orders D210-21, dated 28 October 1987, show the applicant's effective date of retirement was
2 December 1987 and he was placed on the TDRL on 3 December 1987.

7.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states, in pertinent part, that for item 12 (Record of Service) use extreme care in completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information.  It further states that for:

   (a)  item 12a, enter the beginning date of the continuous period of AD for
issuance of this DD Form 214, for which a DD Form 214 was not previously issued;

   (b)  item 12b,enter the Soldier’s transition date. This date may not be the contractual date if the Soldier is separated early, voluntarily extends, or is extended for make up of lost time, or retained on active duty for the convenience of the Government;

   (c)  item 12c, enter the amount of service this period by subtracting item 12a from 12b.  Lost time under Title 10, U.S. Code, section 972 and non-creditable time after ETS, if any, are deducted.  Such time will be identified in item 18 (Remarks).  If Soldier was released from active duty because of voided enlistment, enter “00 00 00”; and

   (d)  item 12d, from previously issued DD Forms 214, enter the total amount of prior active military service less lost time, if any.  If not applicable, enter “00 00 00.”

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that his DD Form 214 for the period ending 
2 December 1987 shows he completed 11 years and 2 months of active duty service, items 12c and 12d combined of this DD Form 214 only show that he served a total of 5 years and 6 days of active duty service.

2.  The applicant's enlistment contract which shows he enlisted in the RA on
26 November 1985 is accepted as sufficient evidence on which to amend item 12a of his DD Form 214 for the period ending 2 December 1987 to show
26 November 1985.

3.  Although the applicant contends that he was released from active duty on 
5 December 1987, retirement orders show his effective date of retirement was 
2 December 1987 which is properly shown in item 12b of his DD Form 214 for the period ending 2 December 1987.  Therefore, there is insufficient evidence on which to amend item 12b of this DD Form 214.

4.  Evidence of record shows the applicant served on active duty from 
26 November 1985 to 2 December 1987, for a total of 2 years and 7 days which is properly shown in item 12c of his DD Form 214 for the period ending 
2 December 1987.  Therefore, there is insufficient evidence on which to amend 12c of this DD Form 214.

5.  Although the applicant contends that he served on active duty from 15 August 1978 to 15 August 1981, evidence of record shows he served on active duty from 16 August 1978 to 14 August 1981, for a total of 2 years, 11 months, and 
29 days which is properly shown in item 12d of his DD Form 214 for the period ending 2 December 1987.  Therefore, there is insufficient evidence on which to amend item 12d of this DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
deleting from item 12a of his DD Form 214 for the period ending 2 December 1987 the entry "85  11  25" and replacing it with the entry "85  11  26."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending items 12b, 12c, or 12d of his DD Form 214 for the period ending 2 December 1987.



      __________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)                                         AR20090013468



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ABCMR Record of Proceedings (cont)                                         AR20090013468



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