IN THE CASE OF:
BOARD DATE: 17 April 2012
DOCKET NUMBER: AR20110017468
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 the date of his entry on active duty (AD) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 November 1993.
2. He states he does not know exactly what date he initially entered AD, but he was on AD on 23 November 1973 and he did not have a break in military service.
3. He provides a photocopy of a DA Form 2664 (Leave and Earnings Statement).
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. A DD Form 4 (Enlistment Contract) contained in his military records shows he initially enlisted in the Regular Army on 23 November 1973.
3. His records show he executed an immediate reenlistment on 4 November 1975. He continued to serve through extensions and additional reenlistments without a break in his military service.
4. He was voluntarily retired for length of service on 30 November 1993 in the rank of staff sergeant/E-6.
5. His DD Form 214 ending on 30 November 1993 shows he completed 18 years and 17 days of active service during the period of AD covered by this DD Form 214. This form shows he served 1 year, 11 months, and 11 days of active service prior to the period covered by this DD Form 214.
6. A review of his available records failed to reveal a DD Form 214 for the period of prior active service (from 23 November 1973 to 3 November 1975) reflected in item 12d (Total Prior Active Service) of his DD Form 214 ending on 30 November 1993.
7. Army Regulation 635-5 (Personnel Separation) prescribes the separation documents that must be prepared for Soldiers. It states that a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge or release from Active Army.
a. This regulation, in effect at the time, prescribed that a DD Form 214 would be prepared at the time a Soldier executed a discharge and immediate reenlistment.
b. This regulation states that a DD Form 214 will not be issued to replace record copies or DD Forms 214 lost by Soldiers.
DISCUSSION AND CONCLUSIONS:
1. At the time of his initial period of service the regulatory policy required the preparation of a DD Form 214 at immediate reenlistment. As such, it is reasonable to presume a DD Form 214 was prepared and given to the applicant for his AD service performed prior to that covered by his DD Form 214 for the period ending 30 November 1993.
2. The Board starts its consideration with a presumption of regularity, i.e., that what the Army did was correct. The burden of proving otherwise is the responsibility of the applicant. Since it is presumed the applicant was issued a DD Form 214 for the period of service from 23 November 1973 to 3 November 1975, there are no provisions for correcting his DD Form 214 for the period ending 30 November 1993 to show this service. As such, he is not entitled to correction of item 12a (Date Entered AD This Period) of this 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) AR20110017468
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ABCMR Record of Proceedings (cont) AR20110017468
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