IN THE CASE OF:
BOARD DATE: 31 July 2012
DOCKET NUMBER: AR20120001905
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 item 15 (Date Entered Active Duty This Period) of his DD Form 214 (Report of Separation from Active Duty) to show 21 December 1976 instead of 26 January 1977.
2. He states he joined the Army under the Delayed Entry Program (DEP) on 21 December 1976 and this is the day he was sworn in. The date which is currently reflected on his DD Form 214 is incorrect because this is the date he went to basic combat training.
3. He provides two DD Forms 214.
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. His record contains a DD Form 4 (Enlistment or Reenlistment Agreement Armed Forces of the United States) which shows the following information:
* Section II (Agreements)
* he enlisted in the U.S. Army Reserve (USAR) on 22 December 1976 for a period of 6 years
* the additional details of his obligations under this agreement were provided in Annex A (DA Form 3286-40 (Statements for Enlistment DEP))
* Section VII (Change of Status)
* he was discharged from the DEP on 25 January 1977
* he enlisted in the Regular Army and entered active duty on 26 January 1977
3. Annex A of his enlistment contract also shows his date of enlistment in the Regular Army as 26 January 1977.
4. The applicant's records contain a DA Form 2-1 (Personnel Qualification Record Part II) which shows in Section VII (Current and Previous Assignments):
* he was in the USAR DEP from 22 December 1976 to 25 January 1977
* he enlisted in the Regular Army on 26 January 1977 and reported to the U.S. Army Reception Station, Fort Knox, KY, the same day
5. The applicant provided a DD Form 214 for the period ending 26 July 1979. Item 15 of this document shows he entered active duty on 26 January 1977.
6. He provided a second DD Form 214 which shows he reenlisted and entered active duty on 27 July 1979 and was discharged on 20 June 1980.
7. Army Regulation 635-5 (Separation Documents) in effect at the time, stated to enter the date the service member entered active duty for the period of service covered by the DD Form 214. There were no provisions to add the date of entry in the USAR DEP.
DISCUSSION AND CONCLUSIONS:
1. His request to change the date he entered active duty was carefully considered.
2. His record shows he enlisted in the USAR DEP on 22 December 1976 and remained in a DEP status until his release on 25 January 1977. He enlisted in the Regular Army and entered active duty on 26 January 1977 and his DD Form 214 for the period ending 26 July 1979 correctly shows this.
3. As such, he is not entitled to the 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 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) AR20120001905
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ABCMR Record of Proceedings (cont) AR20120001905
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