IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090020902 


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 item 12a (Date Entered AD This Period) of his 30 June 1996 DD Form 214 (Certificate of Release or Discharge from Active Duty).  

2.  The applicant states he entered the Delayed Entry Program (DEP) on 
24 January 1974, and entered active duty on 11 February 1974.  He states his 
30 June 1996 retirement DD Form 214 incorrectly shows he entered active duty on 2 December 1975.  He claims he served 21 years and 5 months and not 
20 years and 9 months as indicated on the DD Form 214.  He also indicates his pay entry basic date (PEBD) is 24 January 1974, which means his finance records are also wrong.  

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

* Retirement Orders
* DA Form 2339 (Application for Retirement)
* DD Form 214
* DA Form 2-1 (Personnel Qualification Record)
* Leave and Earnings Statements (LESs)




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 record shows that he initially enlisted in the United States Army Reserve (USAR) DEP on 24 January 1974 and served in that status until 10 February 1974, at which time he was discharged from the DEP, enlisted in the Regular Army (RA) for 2 years, and entered active duty on 11 February 1974.  

3.  On 1 December 1975, the applicant was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 issued for this period of service (11 February 1974-1 December 1975) is not on file in his record.  

4.  On 2 December 1975, the applicant reenlisted in the RA and began his last continuous period of active duty service.  He continuously served on active duty through reenlistments until being honorably retired, in the rank of master sergeant/E-8, on 30 June 1995.  

5.  The applicant’s record contains XVIII Airborne Corps and Fort Bragg, North Carolina Orders 041-0146, dated 10 February 1995.  These orders authorized the applicant’s release from active duty for retirement on 30 June 1995, and his placement on the Retired List, in the retired grade of MSG/E-8, on 1 July 1995.  In addition, the orders confirm for retirement pay percentage purposes the applicant completed 21 years, 4 months, and 20 days of active duty service, and that he completed a total of 21 years, 5 months, and 7 days of military service for pay scale purposes.  

6.  The DD Form 214 issued to the applicant upon his retirement on 30 June 1995 shows he completed 19 years, 6 months, and 29 days of active duty during the period covered by the DD Form 214 (2 December 1975 through 30 June 1995) in item 12c (Net Service This Period).  Item 12d (Total Prior Active Service) shows he completed a total of 1 year, 9 months, and 29 days of prior active duty service, which covers the period of his initial enlistment (11 February 1974 through 1 December 1975), and Item 12e Total Prior Inactive Service) shows he completed a total of 17 days of prior inactive service, which accounts for his time in the DEP (24 January through 10 February 1974).  

7.  Army Regulation 635-5 (Separation Documents) 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 establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of guidance on the DD Form 214 and states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  

8.  The same regulation further states the DD Form 214 will cover the period beginning on the date of continuous active duty service for which a DD Form 214 was not previously issued, and will end on the date of separation.  Periods of active duty service covered by previously issued DD Forms 214 will be entered as prior active duty service.  The versions of the regulation in effect at the time of the applicant’s 1975 discharge for immediate reenlistment provided for the issue of a DD Form 214 for each period of enlistment.  This policy was rescinded effective 1 October 1979.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the dates entered in items 12a, 12c, 12d, and 12e of his 30 June 1995 DD Form 214 are incorrect was carefully considered.  However, the evidence does not support this claim.  By regulation, a DD Form 214 covers the period of continuous active duty service for which a DD Form 214 was not previously issued and the date entered in item 12a will be the date beginning of continuous active duty service for which a DD Form 214 was not previously issued.  

2.  The regulation in effect at the time of the applicant’s discharge for immediate reenlistment on 1 December 1975 called for the issue of a DD Form 214 for his initial period of active duty service from 11 February 1974 through 1 December 1975.  There are no regulatory provisions allowing for replacement of lost 
DD Forms 214 or to correct service dates in subsequent DD Forms 214 to account for service dates on lost DD Form 214s.  

3.  The applicant’s 30 June 1995 DD Form 214 accounts for all his military service in items 12c, 12d and 12e.  Item 12c accounts for his last continuous period of active duty service from 2 December 1975 through 30 June 1995.  Item 12d accounts for his initial period of active duty service from 11 February 1974 through 1 December 1975.  Item 12e accounts for his service in the DEP from 
24 January through 10 February 1974.  Absent evidence the applicant is not being properly credited with completed service on the DD Form 214 in question, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  The applicant’s retirement orders confirm his retired pay was calculated on the correct amount of military service.  It confirms he is credited with 21 years, 
4 months, and 20 days of active duty service, which accounts for all his active duty service, for retired pay percentage purposes; and that he is credited with a total of 21 years, 5 months, and 7 days of military service  for pay purposes, which accounts for all his active duty service and his inactive service in the DEP.  As a result, there is no evidence of any error in the service credited for retired pay calculations.   

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)                                         AR20090020902



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ABCMR Record of Proceedings (cont)                                         AR20090020902



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