IN THE CASE OF:
BOARD DATE: 16 June 2011
DOCKET NUMBER: AR20100028505
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 he served 2 years of active military service.
2. The applicant states his service should show 2 years from February 1974.
3. The applicant provides no additional evidence 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 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 15 February 1974 for a period of 2 years. He did not complete initial entry training. The highest rank/grade he held was private (PV1)/E-1.
3. On 5 March 1974, the applicant's commander requested his separation from the service under provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5, paragraph 5-38, due to the concealment of an arrest record.
4. On 11 March 1974, the applicant was advised by consulting counsel of the basis for the contemplated action to separate him, its effects, the rights available to him, and the effect of a waiver of his rights. Having been advised by counsel, he waived his rights and elected not to submit a statement in his own behalf.
5. On 19 March 1974, the separation authority directed his discharge under the provisions of Army Regulation 635-200, paragraph 5-38, concealment of an arrest record, with issuance of an Honorable Discharge Certificate.
6. On 27 March 1974, he was discharged accordingly. The DD Form 214 he was issued at the time shows the authority and reason for his separation as Army Regulation 635-200, paragraph 5-38. It further shows in item 18(a) (Net Active Service This Period, item 18(c) (Total Active Service), and item 18 (e) (Total Service for Pay) he completed 1 month and 13 days of active service.
7. His DA Form 20 (Enlisted Qualification Record) and other documents in his record indicate he served on active duty during the period of 15 February through 27 March 1974.
8. Army Regulation 635-5 (Separation Documents) states a DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty service. It provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge. It states for:
* item 18(a), enter the total service completed between the dates shown in item 15 (Date Entered Active duty This Period) and item 9d (Effective Date of Separation)
* Item 18(c), enter total active serve the Soldier has completed beginning with the earliest period of active service up to and including current period of active duty
* item 18(e), enter the total period of active and inactive service completed
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows he was properly and equitably discharged from the service for concealment of an arrest record in accordance with regulations in effect at the time.
2. His DD Form 214 and other documents in his record show he served 1 month and 13 days of active service prior to his discharge. Although he enlisted for a period of 2 years, he cannot be credited for service he did not perform. As such, his DD Form 214 is correct as constituted regarding his dates and length of service.
3. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20100028505
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ABCMR Record of Proceedings (cont) AR20100028505
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