IN THE CASE OF:
BOARD DATE: 1 June 2010
DOCKET NUMBER: AR20090020023
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) for the period ending 31 May 1996 (hereafter referred to as the DD Form 214 in question) to show "19740329" in item 12a (Date Entered Active Duty This Period).
2. The applicant states his date of entry in the U.S. Army was 29 March 1974 and he needs his DD Form 214 in question to show this date.
3. The applicant provides his DD Form 214 and a National Archives and Records Administration (NA) Form 13038 (Certification of Military Service).
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 military records show he enlisted in the Regular Army on 29 March 1974. He reenlisted on 19 January 1977 and served continuously through additional reenlistments until he retired on 31 May 1996. He was awarded the military occupational specialty of indirect fire infantryman. The highest rank/grade he held was sergeant first class/E-7.
3. The applicant's DD Form 214 in question shows he was honorably retired by reason of sufficient service for retirement. It shows he completed 19 years, 3 months, and 3 days during this period of active service. It further shows he completed 2 years, 9 months, and 20 days of prior active service for a total of 22 years and 23 days of active service.
4. The applicant's DD Form 214, item 12a, contains the entry, "19770119."
5. His records contain a DD Form 4 (Enlistment Contract) showing he was discharged on 18 January 1977 and reenlisted effective 19 January 1977.
6. The applicant's available records contain no DD Form 214 for the period 29 March 1974 through 18 January 1977. A Certification of Military Service, dated 5 November 2009, shows he served in the Regular Army during the period 29 March 1974 through 18 January 1977.
7. Army Regulation 635-5 (Separation Documents) is a synopsis of the Soldier's most recent period of continuous active duty service. It provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge. The version of this regulation in effect at the time provides that, effective 1 October 1979, DD Forms 214 were no longer issued to enlisted service members who were discharged for immediate reenlistment.
8. Army Regulation 635-5 states in pertinent part that a DD Form 214 would not be reissued to replace record copies or DD Forms 214 lost by service members.
DISCUSSION AND CONCLUSIONS:
1. The Board starts its consideration with a presumption of regularity, that what the Army did was correct. The burden of proving otherwise is the responsibility of the applicant. Therefore, due to his discharge on 18 January 1977 and immediate reenlistment on 19 January 1977, it is presumed that a DD Form 214
was issued for the applicant's period of active duty service from 29 March 1974 through 18 January 1977. Army Regulation 635-5 prohibits the reissue of a lost DD Form 214.
2. Since it is presumed the applicant was issued a DD Form 214 for the period of service from 29 March 1974 through 18 January 1977 there are no provisions for correcting his DD Form 214 for the period ending 31 May 1996 by adding this service. As such, he is not entitled to correction of item 12a on his DD Form 214.
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) AR20090020023
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ABCMR Record of Proceedings (cont) AR20090020023
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