IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100007740 


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, in effect, correction to Item 15 (Date Entered Active Duty This Period) of his DD Form 214 (Report of Separation from Active Duty) for the period ending 16 October 1974.

2.  He states his date of enlistment was 17 January 1971.  He did not discover the error until he filed for benefits.

3.  He provides a copy of his DD Form 214.

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 military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 22 November 1971.  He was discharged from the USAR DEP on 16 January 1972 and he enlisted in the Regular Army (RA), in pay grade E-1, on 17 January 1972, for 3 years.  He was honorably discharged on 16 October 1974 for the purpose of immediate reenlistment.  He was issued a DD Form 214 which shows, in Item 15, the date 17 January 1972.  He was credited with 1 year and 9 months of net active service and 1 month and 24 days of prior inactive service (USAR DEP time).  He was also credited with 1 year, 10 months, and 24 days of total service for pay.

3.  He reenlisted in the RA, in pay grade E-4, on 17 October 1974 and served continuously on active duty through several reenlistments until he was honorably retired on 31 January 1994.  

4.  Army Regulation 635-5 (Personnel Separation - Separation Documents), then in effect, governed the preparation of the DD Form 214.  The regulation stated a DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from active duty.

* for Item 15, enter the date the Soldier entered on active duty for which a DD Form 214 was not previously issued
* for Item 18 (Record of Service) a (Net Active Service This Period), enter the amount of service this period by subtracting Item 15 from Item 9d (Effective Date of Separation)
* for Item 18c (Total Active Service), enter the total amount of service by adding Item 18a and 18b (Prior Active Service)
* for Item 18d (Prior Inactive Service), enter the total amount of prior inactive service, including DEP time
* for Item 18e (Total Service for Pay), enter the total amount of service by adding 18c and 18d

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to correction of Item 15 of his DD Form 214 for the period ending 16 October 1974. He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows he enlisted in the USAR DEP on 22 November 1971.  He was subsequently discharged from the USAR DEP on 16 January 1972 and 

he enlisted in the RA on active duty on 17 January 1972 for his first enlistment period.  He was discharged on 16 October 1974 for the purpose of immediate reenlistment for which he was issued a DD Form 214.

3.  The evidence also shows he reenlisted on 17 October 1974 and he served continuously until his retirement on 31 January 1994.

4.  In accordance with regulatory guidance, Item 15 of his DD Form 214 for his initial period of service would begin on the date of his enlistment in the RA on
17 January 1972 through the date of his discharge on 16 October 1974 for the purpose of immediate reenlistment.  Therefore, Item 15 of his DD Form 214 for the period ending 16 October 1974 is correct as shown.

5.  The evidence of record supports the fact he served in the USAR DEP from 22 November 1971 through 16 January 1972, a period of 1 month and 25 days, dates inclusive.  He served his first enlistment in the RA from 17 January 1972 through 16 October 1974, a period of 2 years and 9 months, dates inclusive.  He was issued a DD Form 214 for the period ending 16 October 1974 only crediting him with 1 year and 9 months of net active service and 1 month and 24 days of prior inactive service.  Based on the evidence of record, he is entitled to correction to his DD Form 214 for the period ending 16 October 1974 as follows:

* Item 18a to show a credit of 2 years and 9 months
* Item 18c to show a credit of 2 years and 9 months
* Item 18d to show a credit of 1 month and 25 days
* Item 18e to show a credit of 2 years, 10 months, and 25 days

6.  In view of the foregoing, his records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ___x_____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all the Department of the Army records of the individual concerned be corrected by:

   a.  deleting from item 18a of his DD Form 214 for the period ending
16 October 1974 the entry "01  09  00" and replacing it with the entry
"02  09  00";

   b.  deleting from item 18c of his DD Form 214 for the period ending
16 October 1974 the entry "01  09  00" and replacing it with the entry
"02  09  00";

   c.  deleting from item 18d of his DD Form 214 for the period ending
16 October 1974 the entry "00  01  24" and replacing it with the entry
"00  01  25"; and

   d.  deleting from item 18e of his DD Form 214 for the period ending
16 October 1974 the entry "01  10  24" and replacing it with the entry
"02  10  25";

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending Item 15 of his DD Form 214 for the period ending 16 October 1974 to show he entered on active duty on 17 January 1971.



      ___________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)                                         AR20100007740



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ABCMR Record of Proceedings (cont)                                         AR20100007740



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