BOARD DATE: 12 August 2010
DOCKET NUMBER: AR20100007164
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 date of discharge be changed to 26 February 2006 on his DD Form 214 (Certificate of Release or Discharge from Active Duty).
2. The applicant states his terminal leave start date was used as his discharge date on his DD Form 214.
3. The applicant provides a copy of his DD Form 214 with a discharge date of 18 January 2006.
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. With prior service in the Army National Guard, the applicant enlisted in the Regular Army on 26 February 2003 for a 3-year period. His rank upon entry on active duty was specialist/pay grade E-4. He enlisted for military occupational specialty 67T (UH-60 Helicopter Repairman).
3. Headquarters, 101st Airborne Division (Air Assault), issued Orders 353-0704 on 19 December 2005 discharging the applicant from the Regular Army on 18 January 2006. His discharge was due to a disability that did not result from a combat-related injury. Severance pay was authorized in pay grade E-4 based on 4 years, 6 months, and 18 days of cumulative active service. Within the orders were additional instructions authorizing the applicant 20 days of permissive temporary duty starting on 30 December 2005.
4. Accordingly, on 18 January 2006, the applicant was honorably discharged. He was issued a DD Form 214 this date that shows the following entries in item 12 (Record of Service):
a. item 12a (Dated Entered Active Duty) shows "year(s) 2003, months(s) 02, day(s) 26";
b. item 12b (Separation Date this Period) shows "year(s) 2006, month(s) 01, day(s) 18";
c. item 12c (Net Active Service this Period) shows "year(s) 02, month(s) 10, day(s) 23";
d. item 12d (Total Prior Active Service) shows "year(s) 01, month(s) 07, day(s) 25"; and
e. item 12e (Total Prior Inactive Service) shows "year(s) 09, month(s) 11, day(s) 07."
5. Item 18 (Remarks) of his DD Form 214 shows he served in Iraq from 18 June 2003 to 3 February 2004.
6. Item 21 (Signature) of his DD Form 214 shows he was not available to sign.
7. Item 28 (Narrative Reason for Separation) of his DD Form 214 shows he was discharged based on a disability and entitled to severance pay.
8. Army Regulation 635-5 (Separation Documents), effective 30 September 2000, provided that a DD Form 214 must be prepared for all Soldiers at the time of their retirement, discharge, or release from active duty service or control of the Active Army. This regulation establishes the standardization policy for preparing and distributing the DD Form 214 to include the use of proper source documents in the preparation of the DD Form 214. The source documents include the Soldier's enlisted record brief, separation approval authority documentation, separation order, and any other document authorized for filing in the Soldier's official military personnel file. Further guidance provides that the Soldier's ending date of continuous active duty is the date identified in the separation order.
DISCUSSION AND CONCLUSIONS:
1. Based on the evidence of record, the applicant was discharged due to a disability and entitled to severance pay with orders directing his date of discharge as 18 January 2006. These same orders show he started permissive temporary duty on 30 December 2005. There are no orders or other supporting evidence showing he was entitled to terminal leave with a separation date of 26 February 2006.
2. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant failed to submit evidence that would satisfy this requirement.
3. In view of the foregoing, there is insufficient evidence to correct the applicant's record to show his separation date as 26 February 2006.
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) AR20100007164
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ABCMR Record of Proceedings (cont) AR20100007164
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