IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100026641 


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 (Certificate of Release or Discharge from Active Duty) to show he served on active duty from 30 October 1962 through 23 October 1965 and award of the Legion of Merit (LOM).

2.  The applicant states it was never a problem until he reached the age of 65 and he was transferred from TRICARE to Medicare and he now needs his DD Form 214 and old DD Form 398-2 (National Agency Questionnaire) to prove he has over 21 years of service.

3.  The applicant provides:

* his DD Form 214 for the period ending 31 August 1985
* page 3 of his DD Form 398-2
* his Legion of Merit Certificate, dated 6 June 1985

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 enlisted in the Regular Army (RA) on 30 October 1962.  He was honorably released from active duty on 23 October 1965 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He was issued a DD Form 214 for this period of service that shows he completed 2 years, 11 months, and 23 days of active service.

3.  The applicant reentered active service in the RA for which he was issued separate DD Forms 214 for the period 28 April 1967 through 18 July 1977, as follows:

PERIOD OF SERVICE
YR(S)  MO (S)  DAY(S)
28 April 1967 through 28 April 1970
03  00  01
29 April 1970 through 4 February 1975
04  09  07
5 February 1975 through 18 July 1977
02  05  14
                                                 TOTAL
10  02  22
4.  He again enlisted in the RA on 19 July 1977 and he served continuously until he retired for length of service on 31 August 1985.  Item 12 (Record of Service) of the DD Form 214 he was issued for this period of service shows in:

* Item 12a (Date Entered Active Duty This Period) the entry "77  07  19"
* Item 12b (Separation Date This Period) the entry "85  08  31"
* Item 12c (Net Active Service This Period) the entry "08  01  12"
* Item 12d (Total Prior Active Service) the entry "13  02  14" [calculated by adding his service from 30 October 1962 through 23 October 1965 and
28 April 1967 through 18 July 1977]

5.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for the period ending 31 August 1985 does not show award of the LOM.

6.  Permanent Orders 67-1, issued by Headquarters, U.S. Army Information Systems Command, Fort Huachuca, AZ, dated 6 June 1985, awarded the applicant the LOM for meritorious service for the period 10 August 1984 through 31 August 1985. 
7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, 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 of the separation documents regulation contains preparation instructions for the 
DD Form 214.  The instructions for Item 12a state to enter the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.

8.  Army Regulation 635-5, dated 15 August 1979, stated that effective 1 October 1979, the DD Form 214 would not be prepared for enlisted members discharged for immediate reenlistment in the RA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he now needs his DD Form 214 corrected to include his prior active service because when he reached age 65 and he was transferred from TRICARE to Medicare he needs to show his DD Form 214 and DD Form 398-2 to prove he completed over 21 years of active duty service.  He also contends his LOM should be shown on his DD Form 214.  Acopy of his first four DD Forms 214 will be provided to him.

2.  Regulatory guidance states that Item 12 of the DD Form 214 will contain the beginning date of the continuous period of active duty for which a DD Form 214 was not previously issued.  

	a.  The evidence of record confirms he served on active duty from 30 October 1962 through 21 October 1965 for a period of 2 years, 11 months, and 23 days for which he issued a DD Form 214 for this period of service.

	b.  The evidence of record confirms he reentered active service on 28 April 1967 through 18 July 1977 for a combined period of 10 years, 2 months, and
22 days for which he was issued three additional DD Forms 214.  A copy of his first four DD Forms 214 will be provided to him.

	c.  It also confirms that he served on continuous active duty from 19 July 1977 through 31 August 1985 at which time he retired for length of service.  His final DD Form 214 for the period ending 31 August 1985 clearly shows all of this service in two entries; one in Item 12c for the current period of service and in Item 12d for his total prior active service.  Accordingly, the DD Form 214 for the period ending 31 August 1985 is correct and should not be changed.

3.  Permanent orders awarded the applicant the LOM.  Therefore, his DD Form 214 for the period ending 31 August 1985 should be corrected to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  __X_____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 adding to item 13 of his DD Form 214 for the period ending 31 August 1985 the Legion of Merit.

2.  The Board further determined that 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 his DD Form 214 for the period ending 31 August 1985 to specifically show his prior period of service from 30 October 1962 through 21 October 1965.



      _______ _  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)                                         AR20100026641



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ABCMR Record of Proceedings (cont)                                         AR20100026641



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