IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100018110 


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 (Report of Separation from Active Duty) to show his:

* Rank/grade as private first class (PFC)/E-3
* Dates of service from September 1969 to December 1973
* Total active service as 4 years and 3 months

2.  The applicant states there was another Soldier with the same exact name as his with a different social security number who enlisted at the same time and same place (Canton, OH).  The two files were mixed up from the first date of their enlistment and no one caught the error.  He joined the military when he was in 11th grade and his reading level was low.  He signed his discharge papers without reading every page.  After he noticed the mistake, he requested and he was sent a corrected DD Form 214 with an entry date of 1969.  The President even sent him a letter stating that he was entitled to full benefits; however, the letter and the first DD Form 214 were burned in a fire.  The whole matter warrants an investigation from the time he entered the military.  His current
DD Form 214 shows he was awarded the National Defense Service Medal which is normally not given someone struggling in basic or advanced training.  In fact he did not even know one could receive a DD Form 214 for less than 180 days of active service.  The other individual stayed in the military less than 90 days; he served in the military from September 1969 to December 1973 and he should be the one entitled to the benefits, not the other individual.

3.  The applicant provides a DD Form 214 and a DA Form 428 (Application for Identification Card).

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 U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) on 14 September 1973.  Item 1 (Service Number/SSAN (Social Security Administration Number) of his DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows an identical Social Security Number (SSN) as that shown on his application to this Board.

3.  He was discharged from the USAR DEP on 17 September 1973 and enlisted in the Regular Army (RA) for a period of 3 years in the rank/grade of private (PV1)/E-1 on 18 September 1973.  Again, item 1 of his DD Form 4 listed the same SSN as that shown on his DEP DD Form 4 and his application to this Board.  He was assigned to Fort Jackson, SC.

4.  He completed basic combat training and was reassigned to Company C, 15th Battalion, 4th Training Brigade, also at Fort Jackson, for completion of AIT for military occupational specialty 76A (Supply Specialist).

5.  His records show he accepted nonnudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

* On 19 October 1973, for dereliction in the performance of his duties
* On 26 November 1973, for failing to go at the time prescribed to his appointed place of duty

6.  On 10 December 1973, the applicant’s immediate commander advised the applicant he intended to recommend him for discharge under the provisions of Department of the Army (DA) Message Date Time Group 011510Z, dated August 1973, Subject: Evaluation and Discharge of Enlistees Before 180 Active Duty Days, later incorporated into chapter 5 (Trainee Discharge Program (TDP)), Army Regulation 635-200 (Personnel Separations).  He cited the specific reasons as the applicant's apathetic attitude towards the military and his disrespect and insubordination.  

7.  On 10 December 1973, the applicant acknowledged notification of the proposed separation action and he was afforded the opportunity to consult with legal counsel but elected not to do so.  The applicant was advised of the basis for the contemplated separation action under the provisions of chapter 5 of Army Regulation 635-200 and its effect on future enlistment in the Army.  He further elected not to submit a statement on his own behalf.

8.  On 10 December 1973, the applicant’s immediate commander initiated separation action against the applicant under the TDP by reason of negative attitude towards the military, apathy, and a lack of motivation.  

9.  On 11 December 1973, his intermediate commander recommended approval. 

10.  On 12 December 1973, the separation authority approved the applicant's discharge and directed that he receive an Honorable Discharge Certificate.  On 19 December 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 3 months and 2 days of creditable active military service.  Additionally, this form shows in:

* Item 6a (Grade, Rate or Rank), the entry "PV1"
* Item 6b (Pay Grade), the entry "E-1"
* Item 9d (Effective Date [of Separation]), the entry "73  12  19"
* Item 15 (Date Entered Active Duty This Period), the entry "73  09  18"
* Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the entry "National Defense Service Medal"

11.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he attained was PV1/E-1.  Additionally, his records do not contain official orders promoting him beyond the grade of E-1.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  DA Message DTG 011510Z August 1973, later incorporated into the regulation under paragraph 5-33, governed the TDP.  This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have failed to respond to formal counseling.  The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, AIT, on the job, or service school training prior to award of a military occupational specialty and must not have completed more than 179 days of active duty on their current enlistment by the date of separation.  The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  The characterization of service for Soldiers separated under this provision of regulation will be honorable.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It stated that items 6a and 6b showed the Soldier's rank and grade at the time of separation; item 9d showed the date of discharge or release from active duty; and item 15, was obtained from the Soldier's records and showed, the date of entry on active duty.

14.  Army Regulation 600-8-22 (Military Awards) states the National Defense Service Medal is awarded for honorable active service for any period between
27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined. 

DISCUSSION AND CONCLUSIONS:

1.  With respect to his rank/grade, the evidence of record shows he enlisted in the RA in the rank/grade of PVT/E-1.  He held this rank/grade at the time of discharge from Army.  There is no evidence in his records and he did not provide any evidence that shows he was promoted beyond E-1 during his military service.  Therefore, he is not entitled to the requested relief.

2.  With respect to the dates of entry and discharge, the evidence of record shows he enlisted in the RA on 18 September 1973 and he was discharged on 19 December 1973.  There is no evidence in his records and he did not provide any evidence that shows he entered active duty in 1969 or that he served on active duty beyond December 1973.  He completed 3 months and 2 days of creditable active duty during his enlistment, which is correctly shown on his 
DD Form 214.  Therefore, he is not entitled to the requested relief.
3.  The National Defense Service Medal was authorized during the period 1 January 1961 and 14 August 1974.  Since he served on active duty during this period, he is entitled to this award and it is properly shown on his DD Form 214. 

4.  There is no evidence in his records and he did not provide any evidence that shows there was a mix up between his service records and another individual's service records. 

5.  In view of the foregoing evidence, he is not entitled to any of 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)                                         AR20100018110



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ABCMR Record of Proceedings (cont)                                         AR20100018110



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