IN THE CASE OF:	  

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090013575 


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 show his total time in service.  

2.  The applicant states that his records were screened and audited when he retired in 1988 to determine his total time in service.  He noted that there was an error in the determination and computation of his retired pay because it excluded two periods of active duty totaling nearly ten months.  The officer who reviewed the data told him he would check into it and make corrections as needed; however, this apparently never happened.  He states that his DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects 25 years, 9 months, and 6 days total active duty time.  It also shows 5 years and 4 months total inactive time.  The applicant alleges that his DD Form 214 does not reflect his 6 months of active duty in 1958 and his 3 months of active duty in 1959.  As a National Guard Technician and member of the Nike Air Defense unit, he was also on active duty from 4 June to 10 June 1961 and 21 July to 2 August 1962.  This total time would result in 26 years and 9 months and would affect his pay entitlement.  

3.  The applicant provides the following documents in support of his application:

* His DD Form 214 for the period ending 30 November 1988;
* His Army National Guard Retirement Credits Record for retirement year 
3 October 1957 to 2 October 1958;
* Active duty orders for training, dated 20 December 1957; and 
* Active duty orders, dated 27 March 1959.
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 enlisted in the Army National Guard on 3 October 1957 and was discharged on 2 August 1962.  

3.  The applicant’s Army National Guard Retirement Credits Record shows he received 364 days of active duty credit between 3 October 1957 and 2 August 1962.

4.  A second Army National Guard Retirement Credits Record covering the period 3 October 1961 through 24 February 1963 shows the applicant received 15 days of active duty credit between 21 July and 2 August 1962 and between 
3 and 4 August 1962.  

5.  The applicant was appointed as a Reserve commissioned officer on 3 August 1962 and was ordered to active duty on 24 February 1963.  

6.  The applicant retired from active duty on 30 November 1988 in the rank of lieutenant colonel.  

7.  Item 12c (Net Active Service This Period) of his retirement DD Form 214 shows he completed 25 years, 9 months and 7 days net active service this period.

8.  Item 12d (Total Prior Active Service) of his retirement DD Form 214 does not show any prior active service.  

9.  Item 12e (Total Prior Inactive Service) of his retirement DD Form 214 shows he completed 5 years, 4 months, and 21 days total prior inactive service.

10.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Transition and Separations, U.S. Army Human Resources Command, St. Louis, MO.  After review of the documents provided to this office, the following determinations were made:

	a.  Block 12d (Total Prior Active Service) of the applicant’s DD Form 214 did not reflect any active duty prior to 24 February 1963;

	b.  A Army National Guard Retirements Credit Record reconstructed in 1988 by the Virginia Army National Guard, Assistant Chief of Staff for Personnel, reflected 364 active duty days performed between 3 October 1957 and 2 August 1962;

	c.  A National Guard Bureau (NGB) Form 23, time stamped 15 June 1988, reflected an additional 15 days of active duty earned between 21 July and 4 August 1962.  
The advisory opinion recommended that the applicant’s service record be corrected to reflect an additional 379 days of active duty performed from 3 October 1957 to 4 August 1992 (sic, should be 1962) and that the Defense Finance and Accounting Service (DFAS) be directed to make such corrections to the applicant’s retired pay account.  

11.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments.  However, he did not respond within the allotted timeframe.  

12.   Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In pertinent part the regulation in effect at the time directed that total prior active service less lost time will be entered in item 12d.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 does not reflect his 6 months of active duty in 1958, 3 months of active duty in 1959, active duty from 4 June to 10 June 1961, and 21 July to 2 August 1962.  He states that this total time would result in 26 years and 9 months and would affect his pay entitlement.  There is sufficient evidence on which to grant the relief requested.  

2.  The applicant served in the Army National Guard from 3 October 1957 through 2 August 1962.  During this period, he completed 379 days of active service (1 year and 14 days) prior active service.  

3.  However, the applicant’s retirement DD Form 214 does not reflect any prior active service in item 12d.  

4.  It appears that administrative errors have occurred in this case regarding the computation of the applicant’s total service.  Therefore, it would be appropriate to correct his records to include his active service and to recalculate his total service.

BOARD VOTE:

____X___  __X____  ___X  ___  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 12d on his retirement DD Form 214 to show 1 year and 14 days total prior active service.

2.  The Board further recommends that the Defense Finance and Accounting Service audit the applicant’s military pay account to determine the amount owed to him as a result of the above correction and that he be paid any back retired pay owed to him.



      _______ _ 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)                                         AR20090011558



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ABCMR Record of Proceedings (cont)                                         AR20090013575



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