IN THE CASE OF:
BOARD DATE: 14 January 2010
DOCKET NUMBER: AR20090014475
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, that Item 11 (Primary Specialty) and Item 12a (Date Entered AD This Period) of her 26 January 1998 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.
2. The applicant states, in effect, that item 11 of her DD Form 214 erroneously shows she served in her military occupational specialty (MOS) for 3 years and
7 months, when it should indicate 4 years. She also states that item 12a should show she entered active duty on 27 January 1994, vice 27 October 1994.
3. The applicant provides her DD Form 214 in support of her 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 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 applicant's record contains a DD Form 4 (Enlistment/Reenlistment Document) which shows she initially enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 23 October 1993. It further shows she was discharged from the DEP and enlisted in the Regular Army and entered active duty on 27 January 1994.
3. The DD Form 214 issued to the applicant upon her release from active duty (REFRAD) confirms she completed a total of 4 years of active military service. Item 11 shows she held MOS 71L (Administrative Specialist) and that she had served in that MOS for 3 years and 7 months. Item 12a shows she entered active duty on 27 October 1994. Item 12b (Separation Date this Period) shows she was REFRAD on 26 January 1998, and Item 12c (Net Active Service this Period) shows she completed 4 years of active duty service during the period covered by the DD Form 214.
4. Army Regulation 635-5 (Separations Document) 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 also establishes standardized policy for preparing and distributing the DD Form 214. Chapter 2 of this regulation contains preparation instructions for the DD Form 214. The instructions for item 11 state, in pertinent part, that the number of years and months served in the MOS will be entered; however, time spent in basic combat and advanced individual training is not counted towards time served in an MOS. The instructions of item 12a state, in pertinent part, to enter the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued. The instructions for Item 12b state, in pertinent part, to enter the actual date of separation. The instructions for Item 12c state, in pertinent part, to enter the amount of service this period, which is computed by subtracting the date in item 12a from the date in item 12b.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that the date entered in item 12a of her DD Form 214 is incorrect was carefully considered and found to have merit. The evidence of record confirms the applicant entered active duty during the period covered by the DD Form 214 on 27 January 1994. Therefore, it would be appropriate to correct item 12a accordingly.
2. The applicant's contention that time served in her MOS entered in item 11 of her DD Form 214 should be corrected to coincide with the time she served on active duty was also carefully considered. However, there is insufficient evidence to support this claim.
3. By regulation, time spent in training prior to award of the MOS is not included as time served in the MOS in item 11 of the DD Form 214. It can be reasonably presumed that the difference between the time served in MOS, as entered in item 11, and the time served on active duty was the time the applicant spent in training prior to award of the MOS. Therefore, it would not be appropriate to grant this portion of the requested relief.
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:
a. deleting the entry in Item 12a of her DD Form 214, issued on 27 October 1994, and replacing it with the entry "19940127"; and
b. providing the applicant a correction to her DD Form 214 that includes this change.
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 correction to item 11 to show she served in MOS 71L for 4 years vice 3 years and 7 months.
_______ _ _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) AR20090014475
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