IN THE CASE OF:	  

		BOARD DATE:	    28 September 2010

		DOCKET NUMBER:  AR20100011695 


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, that his DD Form 214 (Armed Forces of the United States Report of Transfer and Discharge) be changed to show he was separated on 11 February 1967.

2.  The applicant states the information on his DD Form 214 does not add up to the information contained on his DA Form 20 (Enlisted Qualification Record). 

3.  The applicant provides a copy of his DD Form 214 and page 1 of his 
DA Form 20.

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 records show he enlisted in the Regular Army on 3 March 1964 for 3 years.  His expiration term of service (ETS) was listed as 2 March 1967.

3.  His DD Form 214 contains the following information:

   a.  Item 24 (Statement of Service):
   
* item a.1 (Net Active Service This Period) shows 1 year, 6 months, and 24 days
* item a.2 (Other Service) shows no other service
* item a.3 (Total) shows 1 year, 6 months, and 24 days 

b.  Total Active Service, 1 year, 6 months, and 24 days.

   c.  Foreign and/or Sea Service (United States Army Europe (USAREUR)) shows 11 months and 28 days.

4.  Item 29 (Foreign Service) of page 1 of the applicant's DA Form 20 shows from 26 September 1964 through 11 February 1967 the applicant was assigned to Germany.  The date of 11 February 1967 is a penciled entry.  

5.  Special Orders Number 192, dated 23 September 1964, reassigned the applicant to Detachment 1, 504th Adjutant General Administration Company, Germany.  The report date is listed as not later than 26 September 1964.

6.  Item 31 (Record of Assignment) of page 2 of the applicant's DA Form 20, that is contained in his records, shows that effective 5 October 1964 the applicant was assigned to Company A, 504th Aviation Battalion (USAREUR).  

7.  The discharge packet contained in the applicant's records shows on 22 July 1965 he was approved for separation under the provisions of Army Regulation 635-209.  The 3rd endorsement, dated 15 October 1965, from the adjutant stated it was not economical for the Government to start proceedings under Army Regulation 635-208 and further delay the applicant's separation.  The adjutant said a port call was requested and the sentence would be suspended for early release when a port call was available.  

8.  Special Orders Number 268, dated 19 October 1965, show the applicant was assigned from USAREUR to the Transfer Station, Fort Hamilton, New York which was later changed to Fort Dix, New Jersey.  The effective date was based on his port call.  Additionally, a DA Form 137 (Installation Clearance Record) lists the same order as the authority for the applicant's departure and shows he cleared his installation (Ansbach, Germany).  Further, the unit outprocessing checklist indicates the applicant cleared his unit on 28 October 1965.

9.  Special Orders Number 308, dated 4 November 1965, show the applicant was separated from Fort Dix, effective on 5 November 1965.   

10.  The applicant's DD Form 214 shows that on 5 November 1965, he was discharged with a characterization of service of general, under honorable conditions.  The applicant had 40 days of lost under Title 10 USC 972. 

11.  Army Regulation 635-5 (Personnel Separations) in effect at the time, established standardized procedures for preparation and distribution of the 
DD Form 214.  The regulation instructed the preparer to make the following entries:

* 11d (Effective date) enter the date separation is accomplished
* 19c (Date of Entry) enter the date entered on active duty
* 24a(1) enter the total service completed between the dates shown in 19c and 11d of the DD Form 214
* 24b enter the total active service completed beginning with the earliest period of active service up to current period and less time lost under Title 10 USC 972
* 24c (Foreign/and or Sea Service) enter total active duty outside continental limits of the United States for the period covered by the 
DD Form 214

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the entry in item 29 of the applicant’s DA Form 20, there is no convincing evidence that the applicant served in Germany through 11 February 1967 and was therefore discharged that same day.

2.  Although the exact dates of the applicant's departure from Germany are unknown, the available evidence shows he arrived in Germany on 26 September 1964 and departed during the latter part of October 1965.  This information is consistent with his orders, unit clearance papers, and the 11 months and 28 days of foreign service credit listed on his DD Form 214.  

3.  The fact that the applicant's DA Form 20 contains different information than his DD Form 214 has been noted.  However, it appears the pencil entry on the DA Form 20 was meant to be his date of expected return from overseas (DEROS) and that the entry was never finalized with a permanent entry to reflect his actual date of return from overseas (DROS).  Therefore, there is no basis for correcting his DD Form 214.

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)                                         AR20100011695



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ABCMR Record of Proceedings (cont)                                         AR20100011695



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