IN THE CASE OF:
BOARD DATE: 6 November 2012
DOCKET NUMBER: AR20120007953
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 an adjustment of his retired pay to reflect active service of 2 years, 10 months, and 4 days.
2. He states his retired pay is based on 1 year, 10 months, and 4 days of active service. It should be adjusted to reflect active service of 2 years, 10 months, and 4 days as shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
3. He provides copies of:
* DD Form 214
* U.S. Army Military Personnel Center Letter Orders Number D 10-97, dated 10 October 1973
* Letter, Retired Pay Division, subject: Retired Pay, dated 11 April 1972
* a check stub
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 military records show he enlisted in the Regular Army on 7 November 1969. He was awarded the military occupational specialty of 11C (Infantry Indirect Fire Crewman). The highest rank/grade he held was sergeant/E-5.
3. He was retired from active duty on 10 September 1971 due to physical disability. His DD Form 214 shows he completed 2 years, 10 months, and 4 days of creditable active service.
4. A letter from the Chief, Retired Pay Division addressed to the applicant; subject: Retired Pay, dated 11 April 1972, stated the applicant was retired 11 September 1971 in the grade of sergeant/E-5 with a 100 percent temporary disability rating.
5. U.S. Army Military Personnel Center Letter Orders Number D 10-97, dated 10 October 1973, subject: Removal from Temporary Disability Retired List (TDRL) stated the applicant was placed on the TDRL on 11 September 1971.
6. Army Regulation 635-5 (Personnel Separations Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant's DD Form 214 shows he served on active duty during the period 7 November 1969 through 10 September 1971 and that this service equals 2 years, 10 months, and 4 days. However, his DD Form 214 contains a mathematical error in that this service equals 1 year, 10 months, and 4 days. However, it has long been the policy of this Board not to make an applicant worse off than when the applicant applied to the Board. As such, the error on the applicant's DD Form 214 will not be corrected.
2. The applicant states his retired pay is based on 1 year, 10 months, and
4 days; it appears there is no error or injustice. Therefore, 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) AR20120007953
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ABCMR Record of Proceedings (cont) AR20120007953
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