BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120004476 


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) as follows:

* Item 5 (Date of Birth (DOB)) from 17 October 1959 to 17 January 1959
* Item 12a (Date Entered Active Duty (AD) This Period) from 18 January 1980 to the date he entered the Delayed Entry Program (DEP)
* Item 12e (Total Prior Inactive Service) to show his prior service in the DEP
* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) to show his medals and marksmanship badges
* Item 16 (High School Graduate or Equivalent) from "No" to "Yes"

2.  The applicant essentially states his DD Form 214 contains various administrative errors that affect his eligibility for benefits.

3.  The applicant provides his DD Form 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 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 U.S. Army Reserve (USAR) DEP on 29 October 1977 for a period of 6 years.  He listed his DOB as 17 January 1959 and indicated he was attending Artesia High School, Artesia, CA, from October 1977 to the present and that he had not graduated.

3.  On 28 March 1978, he submitted a request for discharge from the USAR DEP.  He indicated he had not obtained a high school diploma and that he must work for living conditions.  He also indicated no possibility for night work and school days.  His request was ultimately approved on 19 July 1978.

4. Orders 148-15, issued by the Armed Forces Examining and Entrance Station (AFEES), Los Angeles, CA, dated 24 July 1978, released the applicant from the custody and control of the Army effective the same date.

5.  On 7 January 1980, he again enlisted in the USAR DEP for a period of
6 years.  He again listed his DOB as 17 January 1959 and indicated he had not completed high school.

6.  On 17 January 1980, he was discharged from the USAR DEP and he enlisted in the Regular Army on 18 January 1980 for a period of 3 years.  He was assigned to Fort Sill, OK, for completion of training.

7.  On 26 February 1980, the applicant’s immediate commander advised the applicant that he intended to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-33 (Trainee Discharge program (TDP)), for failing to demonstrate the physical or mental stamina to become an effective Soldier.  He continued to complain of ailments that could not be verified by medical authorities and he failed to accomplish the simplest of tasks.

8.  On 26 February 1980, the applicant acknowledged notification of his proposed discharge action and he was advised of the basis for the contemplated separation from the Army under the provisions of Army Regulation 635-200, paragraph 5-33, the effect on future enlistment in the Army, and of the procedures and rights that were available to him.  He acknowledged he understood that if he did not have sufficient prior service veterans' benefits normally associated with completion of honorable active service would be affected.  He waived his right to have counsel assist him in explaining the separation procedures and he elected not to submit a statement in his own behalf.  He also elected not to have a separation medical examination if his separation was approved.

9.  On 5 March 1980, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge and directed he receive an honorable discharge.  On 7 March 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed 1 month and 20 days of creditable active service.  This form also shows in:

* Item 5 - "591017"
* Item 12a - "80  01  18"
* Item 12e - "00  00  10"
* Item 13 - NA (Not Applicable)
* Item 16 - "No"

10.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item preparation instructions for the DD Form 214.  It states for:

* Item 12c, enter the amount of active duty service completed during the period covered by the DD Form 214
* Item 12e, enter the total amount of prior inactive service less lost time, if any
* Item 13, enter all awards and decorations
* Item 16, mark the appropriate block

11.  The current version of Army Regulation 635-5 states DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in item 12e.  However, it is creditable service for completing the statutory military service obligation and will be entered in item 18 (Remarks).

12.  Army Regulation 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel), in effect at the time, provided for policies on the separation of enlisted personnel from the Army National Guard and the Army Reserve.  Paragraph 4-13 (erroneous enlistment/extension) states when it is discovered that an individual's enlistment/extension is erroneous because he/she failed to meet the qualifications for enlistment or reenlistment and no intent to obtain enlistment/extension by fraud is evident, the unit commander will initiate action to obtain authority to retain the member, to discharge the member for erroneous enlistment/extension, or to void the enlistment/extension, as appropriate, under the provisions of this section.
DISCUSSION AND CONCLUSIONS:

1.  Upon his enlistment in the USAR in 1977 and in 1980, the applicant listed his DOB as 17 January 1959.  It appears through an administrative error his
DD Form 214 inadvertently listed his DOB as 17 October 1959.  Therefore, his DD Form 214 should be corrected to show his correct DOB.

2.  He enlisted in the USAR (DEP) on 29 October 1977 for a period of 6 years.  However, on 28 March 1978, he submitted a request for discharge from the USAR DEP.  He indicated he had not obtained a high school diploma and that he must work.  He also indicated no possibility for night work and school days.  His request was approved on 19 July 1978.  AFEES published Orders 148-15 releasing him from the custody and control of the Army under the provisions of Army Regulation 135-178, paragraph 4-13, by reason of erroneous enlistment.  As such, this period of service was considered null and void and non-creditable service.  Therefore, there is no basis for including this period of inactive service on his DD Form 214.

3.  However, he completed 10 days in the USAR DEP between the date of his enlistment in the USAR on 7 January 1980 and the date of his discharge from the USAR on 17 January 1980.  Therefore, his DD Form 214 correctly listed 10 days of prior inactive service.

4.  Records show he enlisted in the Regular Army on 18 January 1980.  The
DD Form 214 is a record of continuous active duty service.  Therefore, his date of entry on active duty is correct as shown on his DD Form 214 and requires no change.

5.  There is no evidence of record and he did not provide evidence of any awards or decorations he may have earned during the period covered by his DD Form 214.  As such, his DD Form 214 correctly listed no awards or decorations.

6.  His records do not show and he did not provide evidence of graduating from high school or attaining a high school equivalency, such as a General Equivalency Diploma (GED) prior to his discharge.  As such, the entry in item 16 is correctly marked as "No."







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  __x______  _x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 deleting the current entry from item 5 of his DD Form 214 and replacing it with the entry "590117."

2.  The Board further determined 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 making any corrections to items 12a, 12e, 13, and 16 of his DD Form 214.



      __________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)                                         AR20120004476



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ABCMR Record of Proceedings (cont)                                         AR20120004476



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