IN THE CASE OF:	  

		BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100018200 


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 item 4 (Date of Birth), items 6a (Grade, Rate, or Rank) and 6b (Pay Grade), and item 9d (Effective Date) of his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states the day of his birth should read "18" instead of "19" in item 4 of his DD Form 214.  He also claims his rank and pay grade should be listed as specialist four (SP4)/E-4 in items 6a and 6b and his separation date should be listed as 24 January 1978 in item 9d of the DD Form 214.  He states these inconsistencies are causing problems in his receipt of benefits from the Department of Veterans Affairs.

3.  The applicant also states he believes his discharge was unjust.  He claims he was not properly represented by his military attorney and was not guilty of the charges that were filed.  He further states he was never afforded a drug test which would have provided evidence of his innocence.

4.  The applicant provides the following documents in support of his application:

* birth certificate
* Honorable Discharge Certificate
* 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 record shows he enlisted in the Regular Army (RA) for 3 years and entered active duty on 25 January 1972, which established his active duty expiration of term of service (ETS) date as 24 January 1975 and the termination date of his total 6-year military service obligation (MSO) as 24 January 1978.

3.  His record contains a DD Form 4 (Enlistment Contract - Armed Forces of the United States) and related documents prepared for the applicant during his enlistment processing that all list his date of birth as 18 September 1952.

4.  The DA Form 20 (Enlisted Qualification Record) prepared for the applicant on 31 January 1972 upon his entry on active duty also lists his date of birth as 18 September 1952 in item 6 (Date of Birth).

5.  The applicant's record shows he was promoted to SP4/E-4 on 28 July 1972 and that this is the highest rank he attained while serving on active duty.

6.  On 30 December 1974, a special court-martial (SPCM) found the applicant guilty of violating Article 134 of the Uniform Code of Military Justice by wrongfully possessing marijuana in the hashish form on or about 26 November 1975 in Germany.  The resulting sentence approved by the SPCM convening authority on 31 January 1975 was a reduction to private (PV1)/E-1, forfeiture of $229.00 per month for 6 months, and confinement at hard labor for 5 months.

7.  The applicant served his confinement at the U.S. Army Retraining Brigade, Fort Riley, Kansas.  On 27 March 1975, U.S. Army Retraining Brigade Special Orders Number 60 directed his release from active duty (REFRAD) and transfer to the U.S. Army Reserve (USAR) in the rank of PV1/E-1 effective 28 March 1975.

8.  The DD Form 214 issued to the applicant upon his REFRAD shows he was honorably separated under the provisions of paragraph 5-19.2, Army Regulation 635-200 (Personnel Separations), by reason of completion of correctional training and he was transferred to the USAR to complete his MSO which terminated on 24 January 1978.  Item 4 lists the day of birth as "19" and item 9d lists the year of his separation as "1973."  His rank and pay grade are listed as "PV1/E-1" in items 6a and 6b.  The DD Form 214 further shows at the time of his REFRAD, the applicant completed 2 years, 11 months, and 5 days of creditable active military service and accrued 88 days of lost time due to confinement; 26 days of lost time were accrued prior to his normal ETS of 24 January 1975 and 62 days of lost time were accrued subsequent to his normal ETS.

9.  The applicant provides an Honorable Discharge Certificate that shows he was discharged from the USAR in the rank of SP4/E-4 on 24 January 1978 upon completion of his MSO.

10.  There is no evidence indicating the applicant petitioned the Army Discharge Review Board for a change to the reason for his separation within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or 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 preparing and distributing the DD Form 214.  It states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that items 4, 6a, 6b, and 9d of his DD Form 214 should be corrected has been carefully considered and found to have partial merit.

2.  The evidence of record confirms the applicant's date of birth is in fact 18 September 1952 as evidenced by documents prepared during his enlistment processing and the DA Form 20 prepared for him upon his entry on active duty.  As a result, it would be appropriate to correct item 4 by replacing the day "19" currently listed with the correct day of "18."

3.  The record also shows the applicant enlisted in the RA and entered active duty on 25 January 1972 establishing his active duty ETS as 24 January 1975.  It further shows he completed 2 years, 11 months, and 5 days of creditable active duty service and had accrued 88 days of lost time at the time of his REFRAD.  This clearly establishes the year of his REFRAD as 1975, and not 1973, as is entered in item 9d of his DD Form 214.  Therefore, it would be appropriate to correct item 9d to by replacing the erroneous year entry of "1973" with the correct year entry of "1975."

4.  The applicant's contention that items 6a and 6b should be corrected to reflect his rank and pay grade as SP4/E-4 has also been carefully considered.  However, the evidence of record confirms he was reduced to PV1/E-1 on 30 December 1974 as a result of his SPCM conviction and there is no evidence indicating he was subsequently promoted to SP4/E-4 prior to his REFRAD.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 4 of his DD Form 214 by deleting the erroneous day entry of "19" in item 4 and replacing it with the correct day entry of "18" and by deleting the erroneous year entry of "1973" in item 9d and replacing it with the correct year entry of "1975."

2.  The Board further determined 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 correcting items 6a and 6b regarding his rank and to correcting item 9d as it pertains to a separation year of "1978."



      _____________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)                                         AR20100018200



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ABCMR Record of Proceedings (cont)                                         AR20100018200



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