IN THE CASE OF:	  

		BOARD DATE:  7 February 2013

		DOCKET NUMBER:  AR20120012728 


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) to show he was discharged on
19 November 1973.

2.  The applicant states his record shows he served from 19 March 1970 through 20 January 1971.  However, he reenlisted on 20 January 1971 and he was actually discharged on 19 November 1973.  He adds he was not in the best of mental health at the time and did not care about the accuracy of his records.

3.  The applicant provides no additional documentary evidence in support of his application.

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.  A DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows the applicant enlisted in the Regular Army (RA) on 19 March 1970 for a period of 3 years.

3.  Special Orders Number 14, issued by Headquarters, 1st Armored Division (Old Ironsides), Fort Hood, TX, dated 20 January 1971, honorably discharged the applicant from the RA, in the rank/grade of private first class (PFC)/E-3, effective 20 January 1971 for the purpose of immediate reenlistment on 21 January 1971.

4.  A review of the applicant's Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), failed to reveal a copy of a DD Form 214 for the period of active duty from 19 March 1970 through 20 January 1971.

5.  A DD Form 4 shows the applicant reenlisted in the RA on 21 January 1971 for a period of 3 years.

6.  Special Orders Number 287, issued by Headquarters, III Corps, Fort Hood, dated 19 November 1971, discharged the applicant from the RA, effective
19 November 1971, under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.

7.  On 10 January 1979, the applicant submitted an application to the Army Discharge Review Board (ADRB) requesting review of his discharge.  On
18 November 1980, the ADRB upgraded the applicant's 19 November 1971 discharge, voided his original 19 November 1971 DD Form 214, and issued the applicant a new DD Form 214 (Certificate of Release or Discharge from Active Duty).

8.  The applicant's reissued DD Form 214 shows he was discharged on
19 November 1971 under the provision of Army Regulation 635-212, based on misconduct - frequent incidents of a discreditable nature with civil or military authorities, with a general discharge, characterized as under honorable conditions.

	a.  It shows in item 12 (Record of Service):

* block a (Date Entered Active Duty This Period):  "71  1  21"
* block b (Separation Date This Period):  "71  11  19"


* block c (Net Active Service This Period):  6 months and 23 days
* block d (Total Prior Active Service):  10 months and 2 days

	b.  Item 18 (Remarks) shows, in part, "Prior Regular Enlistments:  "One" and "Vietnam Service:  700912 - 701120."

9.  A review of the applicant's AMHRR failed to reveal any record of service in the U.S. Army subsequent to 19 November 1971.

10.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time the ADRB reissued the applicant's DD Form 214, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214. Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214.

	b.  Item 12 states to use extreme care in completing this block since post-service benefits, final pay, retirement credit, etc. are based upon the information contained herein.  It shows for:

* block a:  enter the beginning date of the enlistment period or tour of active duty for which a DD Form 214 was not issued
* block b:  enter the separation date this period
* block c:  enter the amount of service this period (subtract 12a from 12b); time lost under Title 10, U.S. Code, section 972, and non-creditable time after expiration term of service, if any, will be deducted
* block d:  enter the total amount of prior active military service less time lost, if any

11.  Army Regulation 635-5, in effect at the time of the applicant's honorable discharge on 20 January 1970, prescribes policies and procedures regarding separation documents.  It also establishes standardized policy for preparing and distributing the DD Form 214 and states that a DD Form 214 will be prepared upon discharge from the RA for immediate reenlistment.

12.  This regulation further states in paragraph 2-7 (Issuing and reissuing
DD Form 214), do not issue DD Form 214 to replace record copies or DD Forms 214 lost by Soldiers.  If no DD Form 214 is available, issue a statement of service or transcript of military record.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he was discharged on 19 November 1973 (vice 1971) because he reenlisted on
21 January 1971 and he was discharged on 19 November 1973.

2.  Records show the applicant had two separate periods of enlistment in the RA, as follows:

* enlisted on 19 March 1970; honorably discharged on 20 January 1971
* reenlisted on 21 January 1971; discharged on 19 November 1971

3.  He was issued a DD Form 214 for the period of service from 21 January 1971 through 19 November 1971.  Therefore, the evidence of record shows the applicant's 19 November 1971 DD Form 214 correctly shows this period of service and the date of the applicant's discharge from the RA.

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

5.  Evidence shows the applicant's record contains an administrative error that does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.
2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMD notify the National Personnel Records Center, Military Personnel Record, 1 Archives Drive, St. Louis, MO  63138-1002, to administratively correct the records of the individual concerned by issuing an appropriate document (e.g., Certificate of Service) showing the applicant had honorable active duty service in the Regular Army from 19 March 1970 through 20 January 1971 in the rank of private first class.



      _______ _  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)                                         AR20120012728



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ABCMR Record of Proceedings (cont)                                         AR20120012728



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