IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100026027 


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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his time in the Delayed Entry Program (DEP) and its addition to the time he served in the Army.  He also requests, in effect, the annotations "A", "B", and "G" at the top of his DD Form 214, "1/12/88" in item 18 (Remarks), and "H" in item 24 (Character of Service) be deleted.

2.  The applicant states, in effect, the time he spent in the DEP should be added to the time he served in the Army entered in item 12 (Record of Service) of his DD Form 214.

3.  The applicant provides his DD Form 214 in support of his 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 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 contains a DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) prepared during his enlistment processing.  It shows he enlisted in the U.S. Army Reserve (USAR) DEP on 9 September 1987.  It further shows he was discharged from the USAR DEP on "30" September 1987 and enlisted in the Regular Army (RA) on 30 September 1987.

3.  The record contains separation orders issued on 18 December 1987 at Fort Benning, Georgia, that show the applicant was assigned to the U.S. Army Transition Point for separation processing and discharge on 20 December 1987.

4.  On 20 December 1987, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-3a, by reason of entry-level performance and conduct while in an entry-level status.  Item 12 of the DD Form 214 he was issued shows he entered active duty on 30 September 1987 and he was separated on 20 December 1987 after completing 2 months and 21 days of active military service.  Item 18 of his DD Form 214 contains an entry indicating he was in the USAR DEP from 9 through 30 September 1987.

5.  The service copy (copy 2) of the applicant's DD Form 214 contains a handwritten "B" at the top middle, a handwritten "G" at the top left, the handwritten date "1/12/88" in the bottom left of item 18, and a handwritten "H" in item 24.  It does not contain a handwritten "A."  The member copy (copy 4) of the DD Form 214 does not contain these entries.

6.  The Department of Defense (DOD) Financial Management Regulation, volume 7A, provides statutory provisions for entitlements, deductions, and collections, and establishes DOD policy for pay and allowances for military personnel.  Paragraph 0101 provides the policy for creditable service.  Paragraph 010101, subparagraph D13A, states that for enlistments in a Reserve Component, including enlistments in the DEP that were entered into between 1 January 1985 and 28 November 1989, the period served in the Reserve Component before beginning active duty or an initial period of active duty for training is not creditable.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active duty.  It also establishes standardized policy for preparing and distributing the DD Form 214 and contains item-by-item preparation instructions.  The instruction for item 12e (Total Prior Inactive Service) states to enter the total amount of prior inactive service, less lost time.  It further stipulates that DEP time which began on or after 1 January 1985 is not creditable for pay purposes and will not be entered in this item.  However, DEP service is creditable toward fulfillment of the statutory military service obligation in item 12i (Service Obligation Termination Date) and provides for entering the dates of DEP service in item 18.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to include DEP service has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, DEP service that began on or after 1 October 1985 is not creditable service; however, DEP service does count toward fulfillment of the military service obligation.  The evidence of record confirms the applicant entered the DEP on 9 September 1987, remained in that status through 29 September 1987, and that this is properly documented in item 18 of his DD Form 214.  It further shows he entered active duty on 30 September 1987 and served in that status until being discharged on 20 December 1987, which is properly documented in item 12 of his DD Form 214.

3.  Absent any evidence of record or independent evidence provided by the applicant that shows the service dates entered in item 12 of his DD Form 214 or the DEP dates entered in item 18 are in error, there is an insufficient evidentiary basis to support granting the requested relief.

4.  It is acknowledged that some unknown handwritten entries are included on copy 2 of his DD Form 214.  They may have been to indicate levels of a post-separation review.  However, in any case, the applicant has a "clean" copy 4 of his DD Form 214 and he has not shown how these handwritten entries have been a detriment to him.  Therefore, there is an insufficient basis on which to change that copy of 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 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)                                         AR20100026027



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ABCMR Record of Proceedings (cont)                                         AR20100026027



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