IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100010519 


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 retirement date in item 9d (Effective Date) of his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states his retirement date is incorrect.  The correct date should be 31 May 1976.

3.  The applicant provides a copy of Letter Order Number E-02-013, issued by Headquarters, U.S. Army, Europe and 7th Army, dated 3 February 1976; and 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.  A copy of the applicant's DA Form 2339 (Application for Voluntary Retirement), dated 26 January 1976, shows he enlisted in the Regular Army on 26 January 1954 and he continued to serve on active duty until his retirement from the Army.  Item 4 (Desired Retirement Date) indicates he requested a retirement date of 1 June 1976.  This form also shows his calculated total active service creditable for retirement equaled 22 years, 1 month, and 20 days.

3.  Item 16 (Chronological Dates of Military Service) of his DA Form 2339 reflects he would serve his last period of active service from 23 August 1972 through
31 May 1976, which is a total of 3 years, 9 months, and 8 days.  The applicant's total prior active service, as reflected in this same document was 18 years, 
4 months, and 12 days.

4.  His records contain a copy of a DA Form 3713 (Data for Retired Pay), dated 
3 February 1976, which shows in item 17 (Date Placed on Retired List) the entry "1 June 1976."

5.  The applicant's records contain a DA Form 2876 (Report of Change for a DA Form 20 or 66) which was submitted to amend item 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record - Part II).  This form shows the following changes were made to his record:

* ENTER:  760531/ /ASGD for Proc/AG Transfer Point Ft Carson, CO
* ENTER:  760601 RET Per LO E-02-013 HQ USAREUR & 7th Army, dated 3 February 1976

6.  The applicant submitted a copy of Letter Order Number E-02-013, Subject:  Service Retirement, which shows he was relieved from active duty for the purpose of retirement on 31 May 1976, and placed on the retired list on 1 June 1976.

7.  A copy of his final DD Form 214 shows the following entries:

* item 9d  - "76 [Year]  03 [Month]  31 [Day]"
* Item 18a (Net Service This Period) - "3 [Years] 07 [Months] 8 [Days]"
* item 18b (Prior Active Service) - "18 [Years] 06 [Months] 12 [Days]"  

8.  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 also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 


contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be any document authorized for filing in the Official Military Personnel File (OMPF).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show he retired from the Army on 31 May 1976 instead of 31 March 1976.

2.  Regulatory guidance states, in pertinent part, that any document authorized for filing in the OMPF can be used as a source document when completing the DD Form 214.

3.  Letter Order Number E-02-013 and the DA Form 2339 should have been the official source documents which were used in the preparation of the applicant's final DD Form 214.  These document shows the applicant was released from active duty on 31 May 1976 and placed on the retired list effective 1 June 1976.

4.  The DA Form 2339 shows he completed a total 3 years, 9 months, and 8 days of active federal service during the period 23 August 1972 through 31 May 1976.  This form also shows the applicant had a total of 18 years, 4 months, and 
12 days of prior active service.

5.  It appears an administrative error occurred while completing his DD Form 214.  Item 9d should reflect the entry "76 [Year] 05 [Month] 31 [Day]; item 18a should reflect 3 years, 9 months, and 8 days and item 8b should reflect 18 years, 4 months, and 12 days for a total of 22 years, 1 month, and 20 days of total active service.  Therefore, he is entitled to correction of his DD Form 214 to show these entries.

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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

   a.  deleting from item 9d of his final DD Form 214 the entry "76  03  31" and replacing it with the entry "76  05  31";

   b.  deleting from item 18a of his final DD Form 214 the entry "3  7  8" and replacing it with the entry "3  9  8"; and

   c.  deleting from item 18b of his final DD Form 214 the entry "18  6  12" and replacing it with the entry "18  4  12."



      ___________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)                                         AR20100010519



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ABCMR Record of Proceedings (cont)                                         AR20100010519



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