IN THE CASE OF:	  

		BOARD DATE:	    6 April 2010

		DOCKET NUMBER:  AR20090016553 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he served 2 1/2 years of active service.  He also requests the time he served in military occupational specialty (MOS) 12B (Combat Engineer) be corrected.

2.  The applicant states he served 2 1/2 years in the Army.  He states he has requested assistance through the Department of Veterans Affairs (VA) for education, physical, dental, mental, employment and other benefits and they continue to reject his DD Form 214.

3.  The applicant provides copies of his DD Form 214, his DD Form 215 (Correction to DD Form 214), a letter from the VA, and a letter from the VA to his Congressional representative.

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 military personnel records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 4 October 1988.  He was discharged from USAR DEP on 8 November 1988 and enlisted in the Regular Army on 9 November 1988 for a period of 4 years.

3.  The applicant was awarded MOS 12B effective 2 March 1989.

4.  On 3 March 1989, he was assigned to the 39th Engineer Battalion at Fort Dix, NJ.

5.  On 30 August 1989, the applicant was discharged by reason of a personality disorder.  He had completed 9 months and 22 days of active service that was characterized as honorable.  His DD Form 214 contains the following entries:

	a.  item 11 (Primary Specialty Number, Title, and Years and Months in Specialty) - 12B1O  Combat Engineer  5 months.

	b.  item 12a (Date Entered AD [Active Duty] This Period) - 88  11  09 
(9 November 1988).

	c.  item 12b (Separation Date This Period) - 89  08  30 (30 August 1989).

	d.  item 12c (Net Active Service This Period) - 0  9  22 (0 years, 9 months, and 22 days).

	e.  item 18 (Remarks) - "Delayed Entry Program (DEP)  881004 to 881108"
(4 October 1988 to 8 November 1988).

6.  The DD Form 215 shows a correction to item 27 (Reenlistment Code) 
to RE-3.

7.  A letter from the VA, dated 10 August 2009, notified the applicant he was not referred for consideration for the position Housekeeping Aid.

8.  A letter from the VA, dated 19 October 2009, to the applicant's Congressional representative provided information concerning the applicant's education benefits under Title 38, U.S. Code, chapter 30 - The Montgomery GI Bill - Active Duty.  The VA stated the applicant was eligible for 9 months of chapter 30 benefits based on his active service.  The VA stated the applicant had until 31 August 1999 to use the benefits and their records showed he had never applied.
9.  Army Regulation 635-5 (Separation Documents), in effect at the time, stated the titles of all MOSs served in for at least 1 year were to be entered in item 11 of the DD Form 214 and the number of years and months served.  For time determination 16 days or more count as a month.  Time spent in basic training and advanced individual training are not counted.

10.  Army Regulation 635-5 states the beginning date of the continuous period of active duty for which the DD Form 214 is being issued is to be entered in 
item 12a of the DD Form 214 and the date of separation is to be entered in 
item 12b.  The net service for the period shown is computed by subtracting 
item 12a from item 12b and then deducting any lost time and non-creditable service after the Soldier's expiration of term of service. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he served 2 1/2 years of service that should be reflected on his DD Form 214.  He also contends the time spent in his MOS on his DD Form 214 is incorrect.

2.  Computing the applicant's net service by subtracting item 12a from item 12b of the applicant's DD Form 214 shows he had 9 months and 22 days of active service.  Therefore, the entry in item 12c is correct.  There is no evidence and the applicant did not provide any evidence to show he served more than 9 months and 22 days of active service.

3.  The applicant was awarded MOS 12B effective 2 March 1989 and he was discharged on 30 August 1989.  The time he was assigned the MOS is computed to be 5 months and 28 days.  Therefore, the time spent in MOS 12B1O on his DD Form 214 should read 6 months.

4.  The issues the applicant has with the VA do not fall within the jurisdiction of the ABCMR.  Therefore, the applicant should take them up with that agency.

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 amending item 11 of his DD Form 214 to show he served in MOS 12B1O for 
6 months instead of 5 months.

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 additional active service.



      ____________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)                                         AR20090016553



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016553



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1