IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100000892 


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 to his DD Form 214 (Report of Separation from Active Duty) to show his date of entry onto active duty in 1973 and his rank as a private first class (PFC)/pay grade E-3.

2.  The applicant states his DD Form 214 is incorrect.  He states he entered active service in 1973 and upon discharge his rank was PFC/E-3.

3.  The applicant provides a copy of his DD Form 214 with a separation date of 27 December 1976.

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.  On an unknown date, the applicant enlisted in the State of Texas Army National Guard (TXARNG).  The applicant's TXARNG enlistment documents are not available for review.

3.  On 14 October 1974, the applicant entered active duty for his initial entry training.  He completed this training and was awarded military occupational specialty (MOS) 11E (Armor Crewman).  On 1 March 1975, he was relieved from active duty training and transferred to his unit in the TXARNG.  He was issued a DD Form 214 showing he completed 4 months and 18 days of net active service.   

4.  The applicant enlisted in the Regular Army (RA) on 10 October 1975 for a 
4-year period of service in pay grade E-2 with a date of rank of 10 October 1975.  Upon enlistment, the applicant signed a DD Form 4 (Enlistment or Reenlistment Agreement—Armed Forces of the United States) showing he had a total of
4 months and 10 days of prior active service and 10 months of total prior inactive service.  

5.  Special Orders Number 197 issued by the Armed Forces Examining and Entrance Station at Dallas, TX, dated 10 October 1975 confirms his date of rank to PV2/E-2 as 10 October 1975.

6.  The applicant's service records do not contain any promotion orders that show he was promoted to the rank of PFC/E-3.  His DA Form 2-1 (Personnel Qualification Record), item 18 (Appointments and Reductions), shows the applicant was appointed to the rank of PV2/E-2 on 23 November 1974. 

7.  The applicant's DD Form 214, dated 27 December 1976, shows he was honorably discharged from the RA in the rank of PV2/E-2 with a date of rank of 10 October 1975 prior to his expiration term of service (ETS) date.  He had completed 1 year, 2 months, and 18 days of active service this period.  

8.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that the purpose of a separation document is to provide the individual with documentary evidence of his military service.  It is a vital record for interested Government agencies, which assist the Veteran in obtaining the rights, and benefits to which he is entitled.  Therefore, it is important that information entered is complete and accurate.  The source document used to prepare the DD Form 214 is the DA Form 2-1 and the service records.  It states that for item 6a (Grade, Rate or Rank) and 6b (Pay Grade) enter the grade and pay grade at time of separation.  For item 15 (Date Entered Active Duty This Period) 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.  

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant enlisted in the TXARNG on an unknown date.  His enlistment contract for the TXARNG is not available for review.  He entered active duty for training on 14 October 1974 and served 
4 months and 18 days to complete his initial entry training.  On 1 March 1975, he was relieved from active duty and returned to the TXARNG in the rank of 
PV2/E-2.   

2.  Later in the year, on 10 October 1975, he enlisted in the RA for 4 years.  Permanent orders established his rank as PV2/E-2 effective 10 October 1975, the date of his enlistment in the RA.  He served until he was honorably released from the RA on 27 December 1976, prior to his ETS date.  

3.  The applicant has not provided any compelling evidence to show that he entered active federal service in calendar year 1973 or that he was promoted to PFC/E-3 as he contends in his application.

4.  Based on the foregoing, there is insufficient evidence to change the applicant's entry on active duty to 1973 as he purports.  Additionally, without permanent orders promoting him to PFC there is insufficient evidence to correct his record to show he was separated from the RA in the rank of PFC/E3.  

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)                                         AR20100000892



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ABCMR Record of Proceedings (cont)                                         AR20100000892



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