BOARD DATE: 19 October 2010
DOCKET NUMBER: AR20100011932
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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 4 February 1972 to show he completed 36 months (3 years) of active duty service. In effect, he is requesting that a DD Form 215 (Correction to DD Form 214) he was issued in June 1990 be voided.
2. The applicant states orders were issued giving him full credit for 36 months even though he was released early. He continues that his DD Form 214 was changed by a DD Form 215 in June 1990 to correct a clerical mistake which was not a mistake at all. He contends that the lieutenant colonel did not have the right to disallow full credit after a colonel had issued the order. He adds that the original order was a contract with him to save the Army his pay for the time he got out early.
3. The applicant provides DD Forms 214 for the periods ending 4 February 1972 and 17 April 1975; two DD Forms 215; separation orders; and a memorandum dated 3 March 1972; Subject: Amendment of DD Form 214 in support of this application.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 12 June 1970 and upon completion of initial entry training was awarded military occupational specialty 12B (Combat Engineer).
3. Headquarters, U.S. Army Training Center, Fort Ord, CA, Special Orders Number 27, dated 27 January 1972, directed his release from active duty. These orders show he was being reassigned to the Ohio Army National Guard effective 5 February 1972. The special instructions on these orders show the entry "This individual is credited with his full term of 36 months."
4. On 4 February 1972, he was released from active duty after completing
1 year, 7 months, and 23 days of active duty service. Item 11a (Type of Transfer or Discharge) of his DD Form 214 shows he was released early to join an Army National Guard unit. Item 22a(1) (Net Service this Period) shows he completed
3 years of active duty service.
5. The applicant provided a memorandum dated 3 March 1972, Subject: Amendment of DD Form 214, addressed to the U.S. Army Administration Center, St. Louis, MO. In this memorandum, a Military Personnel Officer (command unknown) requested correction of the applicant's DD Form 214 to reflect 1 year, 7 months, and 23 days of active duty service instead of 3 years of active duty service.
6. He again enlisted in the Regular Army on 28 March 1974 and was discharged on 17 April 1975. Item 18a (Prior Active Service) of his DD Form 214 for this period of service shows he had 1 year, 7 months, and 22 days of prior active duty service.
7 He was issued a DD Form 215, dated 22 June 1990, that corrected his DD Form 214 for the period ending 4 February 1972 to show he completed 1 year,
7 months, and 23 days of active duty service. He was issued a second DD Form 215, also dated 22 June 1990, that corrected his DD Form 214 for the period ending 17 April 1975 to show he had 1 year, 7 months, 23 days of prior active duty service.
8. Army Regulation 635-5 (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 the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his records should be corrected to show he completed 3 years of active duty service on his first enlistment has been carefully reviewed.
2. Records show he was released from active duty early in order to join an Army National Guard unit after completing 1 year, 7 months, and 23 days of creditable active duty service. While he may have been credited with completion of his first full term of service, the fact is he did not serve 3 years of active duty service in his first term of service. A correction to his DD Form 214 to reflect this fact was requested as far back as March 1972.
3. The Army never had, and does not currently have, a policy to grant service credit for active duty service that was not performed. Therefore, the DD Form 215 that corrected his DD Form 214 for the period ending 4 February 1972 was properly prepared and issued.
4. In view of the above, there is no basis to grant the requested relief.
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) AR20100011932
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