BOARD DATE: 20 May 2010
DOCKET NUMBER: AR20090019517
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 his DD Form 214 (Certificate of Release or Discharge from Active Duty), Item 12a (Date Entered AD This Period) be corrected to show 15 February 1976 vice 3 November 1978.
2. The applicant states the existing entry is an administrative error and he just caught it.
3. The applicant does not provide any additional 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 show he enlisted in the Regular Army on
3 February 1976. He reenlisted on 2 November 1978 and served continuously until he was honorably discharged due to physical disability on 22 October 1987.
3. The DD Form 214 he was issued shows in Item 18 (Remarks) "Immediate reenlistments this period: 781103-851107."
4. Army Regulation 635-5 (Separation Documents) provides that effective
1 October 1979, DD Forms 214 are not issued to enlisted service members who are discharged for immediate reenlistment.
DISCUSSION AND CONCLUSIONS:
1. It appears the applicant would have been issued a DD Form 214 for the period covering 3 February 1976 to 2 November 1978 since he reenlisted prior to the discontinuance of the issuance of DD Forms 214 at the time of reenlistment.
2. While this DD Form 214 is not contained in the applicant's records, a presumption of regularity must be presumed that what the Army did was correct. Therefore, it must be presumed that the applicant was issued a DD Form 214 for the period ending 2 November 1978 and it was either not filed in his records or it was removed from his records. The burden of proof rests with the applicant to show otherwise.
3. In view of the foregoing, there is no basis for granting the applicant's request.
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.
ABCMR Record of Proceedings (cont) AR20090019517
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ABCMR Record of Proceedings (cont) AR20090019517
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