BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110018400 


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) for the period ending 30 November 1990 to show he entered active duty this period on 14 May 1973 and his separation date this period as 9 September 1992.  He also requests the word "PATIENT" be entered on his DD Form 214 directly above his separation date this period.

2.  The applicant states he entered the service on 14 May 1973 and he was discharged from the Medical Holding Company at Fort Gordon, GA on 9 September 1992.  He states that 30 November 1990 is the date he was released from the hospital.

3.  The applicant provides:

* a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim)
* his DD Form 214 for the period ending 30 November 1990
* Certificate of Retirement, dated 9 September 1992
* two pages of his DA Form 20 (Enlisted Qualification Record)
* Personnel Qualification Record (Part I)

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 initially enlisted in the Regular Army (RA) on 15 May 1973 for a period of 2 years.  After completing 2 years, 9 months, and 26 days of net active service this period, the applicant was honorably discharged on 9 March 1976.  His official military personnel file (OMPF) does not contain a copy of the
DD Form 214 he received during this period of service.

3.  On 10 March 1976, he reenlisted in the RA for a period of 3 years.  He extended his reenlistment for 7 months on 15 March 1978.  He was honorably discharged on 10 July 1979, for the purpose of immediate reenlistment.  The DD Form 214 he was issued during this period of service shows he completed
3 years, 4 months, and 1 day of net active service this period.  His DD Form 214 also shows he had 2 years, 9 months, and 26 days of prior active service.

4.  The applicant reenlisted in the RA on 11 July 1979 for a period of 3 years.  He remained on active duty through continuous reenlistments and/or extensions.  On 30 November 1990 he was retired by reason of physical disability (Temporary) and placed on the Temporary Disability Retired List (TDRL).  The DD Form 214 he was issued at the time shows he completed 11 years, 4 months, and 20 days of net active service this period and 6 years, 1 month, and 27 days of total prior active service for 17 years, 6 months, and 17 days of creditable active service.

5.  Orders D177-39, issued by the U.S. Army Total Personnel Command, Alexandria, VA, dated 8 September 1992, removed the applicant from the TDRL effective the date of the orders because of permanent physical disability and on the following date he was permanently retired.

6.  The applicant submits a copy of his Certificate of Retirement that shows he was retired on 9 September 1992.  He also submits copies of his DA Form 20 and Personnel Qualification Record, Part I that shows he enlisted in the RA on 14 May 1973.  He also submits a copy of his DD Form 214 for the period ending 30 November 1990.

7.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of release from active duty (REFRAD), discharge, or retirement.  It states for:

	a.  Item 12a (Date Entered Active Duty This Period), 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;

	b.  Item 12b (Separation Date This Period), enter the Soldier’s transition date. This date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended for make up for time lost, or retained on active duty for the convenience of the Government;

	c.  Item 12c (Net Active Service This Period), enter amount of service this period, computed by subtracting item 12a from 12b; and

	d.  Item 12d (Total Prior Active Service), from previously-issued DD Forms 214, enter total amount of prior active military service less lost time, if any.

8.  Army Regulation 635-5 further states a DD Form 214 will not be prepared for Soldiers removed from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicable regulation states that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of REFRAD, discharge, or retirement.  It states 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, will be entered in item 12a.  Evidence shows with continuous prior enlisted service, he reenlisted in the RA on 11 July 1979 and subsequently retired on 30 November 1990 by reason of physical disability – temporary and placed on the TDRL on the following day.

2.  Although a copy of the DD Form 214 he received for the period 14 May 1973 through 10 March 1976 is not contained in his OMPF, his record does contain a copy of the DD Form 214 he was previously issued for the period 10 March 1976 through 10 July 1979 that shows he completed 2 years, 9 months, and 26 days of total prior active service.  It is reasonable to presume that the applicant did receive a DD Form 214 showing his active duty service from 14 May 1973 through 10 March 1976.

3.  There are also no provisions for entering the word "PATIENT" or any other phrase on a Soldier's DD Form 214 directly above his/her separation date.

4.  It appears his DD Form 214 for the period ending 30 November 1990 was properly prepared at the time of his retirement by reason of physical disability – temporary, followed by placement on the TDRL.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110018400



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ABCMR Record of Proceedings (cont)                                         AR20110018400



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