IN THE CASE OF:	  

		BOARD DATE:	    12 November 2013

		DOCKET NUMBER:  AR20130005115 


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, a new DD Form 214 (Certificate of Release or Discharge from Active Duty) or DD Form 215 (Correction to DD Form 214) to show he was retired due to permanent disability on 13 July 1987.

2.  The applicant states:

   a.  He has a DD Form 214 showing he was placed on the Temporary Disability Retired List (TDRL) on 30 July 1985.  He was on the TDRL until then and he was actually discharged on 13 July 1987.  He has a discharge certificate and orders, dated 13 July 1987, releasing him from the TDRL and actually discharging him from the Army.

	b.  He wants to have a proper DD Form 214 for his total service showing he enlisted on 11 February 1976, had one reenlistment in 1980, a correct discharge date of 13 July 1987 for correct years of service for future pay and allowances, and reflecting his Army Commendation Medal and other medals. 

	c.  He currently has an appeal through the Board of Veterans Appeals for post-traumatic stress disorder (PSTD) and needs the record corrected in order to have proper documentation for his family in the event of his death to avoid any discrepancies as to what they are entitled to.  He wants to have the record straight for his family and future generations.  He was issued a DD Form 215 showing his award of the Army Commendation Medal.  This took him 26 and 
1/2 years of fighting to get what he had earned while serving in the Enewetak Atoll Cleanup Project.

3.  The applicant provides:

* 1985 release from active duty orders
* 1985 DD Form 214
* 1987 TDRL removal orders
* 2004 and 2007 DD Forms 215

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) under the Delayed Enlistment Program (DEP) on 11 February 1976.  He was discharged from the DEP on 9 June 1976 and subsequently enlisted in the Regular Army (RA) on 10 June 1976.  He completed training and was awarded military occupational specialty 62G (quarry machine operator).  

3.  He executed a 5-month extension of his enlistment on 24 April 1978 to complete an accompanied tour.  He was honorably discharged on 5 June 1980 for the purpose of immediate reenlistment.  He completed 3 years, 11 months, and 26 days of active service.  

4.  A DD Form 214 for this period was not issued because in October 1979 the Army stopped preparing a DD Form 214 for Soldiers discharged for the purpose of immediate reenlistment. 

5.  He reenlisted in the RA on 6 June 1980.  In April 1985, he sustained a medical condition that warranted his entry into the Army Physical Disability Evaluation System. 

6.  On 28 May 1985, a physical evaluation board (PEB) convened and considered his medical conditions of Guillian-Barre Syndrome, recurrent headaches, syncope of unknown etiology.  The PEB determined his conditions were sufficient evidence of physical unfitness; however, they had not stabilized to the point that a permanent degree of severity could be determined.  The PEB rated his disabilities at 100 percent and recommended his placement on the TDRL.  On 11 June 1985, he waived his right to a formal hearing and concurred with the findings and recommendations of the PEB.

7.  On 2 July 1985, the U.S. Army Military Personnel Center, Physical Disability Branch, published Orders D125-45 relieving him from assignment and placing him on the TDRL with an effective date of 31 July 1985.

8.  He was honorably retired in pay grade E-5 on 30 July 1985 by reason of temporary disability, under the provisions of Title 10, U.S. Code, sections 1202/1372.  His DD Form 214 shows the following:

* Item 12a (Date Entered AD [active duty] This Period – 1980-06-06
* Item 12b (Date Separated This Period) – 1985-07-30
* Item 12c (Net Active Service This Period) – 5 years, 1 month, and 24 days
* Item12d (Total Prior Active Service) – 3 years, 11 months, and 26 days
* Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbon Awarded or Authorized) the –

* Army Service Ribbon
* Overseas Service Ribbon
* Humanitarian Service Medal
* Noncommissioned Officer Professional Development Ribbon
* Army Good Conduct Medal

* Item 18 (Remarks) – Immediate reenlistment this period:  11 February 1976 to 5 June 1980; 6 June 1980 to 30 July 1985
* Item 28 (Narrative Reason for Separation) – Physical Disability, Temporary

9.  On 29 June 1987, pursuant to a finding of a TDRL PEB, the U.S. Army Military Personnel Center, Physical Disability Branch, published Orders D126-12 removing him from the TDRL and discharging him from the service effective 13 July 1987, with entitled to severance pay, due to physical disability rated at 20 percent.

10.  On 20 September 2004, he was issued a DD Form 215 that added the Army Commendation Medal to his DD Form 214, ending on 30 July 1985.  

11.  On 17 July 2007, he was issued a second DD Form 215 that added the Army Commendation Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar to his DD Form 214, ending on 30 July 1985.

12.  Army Regulation 635-5 (Separation Documents), dated 1 October 1979, establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty and provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  

	a.  Effective 1 October 1979, military personnel who were discharged for the purpose of immediate reenlistment were no longer issued a separate DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.

	b.  The regulation currently in effect states when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a 
DD Form 215 or if the correction would require issuance of more than two 
DD Forms 215.

   c.  Paragraph 2-1(a)(2) states a DD Form 214 will be prepared for Active Army Soldiers on termination of active duty by reason of a physical disability separation.  A DD Form 214 will not be prepared for Soldiers removed from the TDRL.  A new DD Form 214 will not be reissued except when directed by proper appellate authority or when two DD Forms 214 had been issued and an additional correction was required.  

   d.  It further stated to enter in:

* Item 12a (Date Entered AD [active duty] – the date of the first date of the last immediate reenlistment for which a DD Form 214 was not issued
* Item 12b – the separation date
* Item 12c – the total time between dates entered in items 12a and b, less time lost
* Item 18 - all enlistment periods for which a DD Form 214 was not issued, example:  Immediate reenlistment this period:  then list the dates

13.  Interim Change Number IO1, dated 16 March 1982, to Army Regulation 
635-5 contained clarification of some items of instructions and added new policies.  One of the changes is for item 12a.  Under this change, item 12a shows the beginning date of the enlistment period for which a DD Form 214 was not issued under the provisions of paragraph 1-4b(5) (Enlisted members discharged for immediate reenlistment) of this regulation.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant initially enlisted in the USAR on 11 February 1976.  However, he did not enlist in the RA and enter active duty until 10 June 1976.  He was discharged on 5 June 1980 for the purpose of immediate reenlistment.  He completed 3 years,11 months, and 26 days of active service.  On 1 October 1979, the Army stopped preparing a DD Form 214 for Soldiers being discharged for the purpose of immediate reenlistment. 

2.  He reenlisted in the RA on 6 June 1980.  On 28 May 1985, a PEB found him physically unfit and placed him on the TDRL.  Orders were published releasing him from active duty and placing him on the TDRL effective 31 July 1985.  He was issued a DD Form 214 showing he was honorably retired due to a temporary physical disability and separating him from active duty on 30 July 1985.  

3.  While he was on the TDRL, he did not perform any active service.  He was in a retired status.  Subsequent to consideration by a TDRL PEB, on 29 June 1987, he was issued orders removing him from the TDRL due to permanent physical disability with an effective date of 13 July 1987.  There is no evidence showing he served in an active duty status after 30 July 1985 to qualify for the issuance of a subsequent DD Form 214.  He was properly issued orders removing him from the TDRL for permanent physical disability in 1987.  Therefore, he is not entitled to the issuance of a DD Form 214 dated 13 July 1987.

4.  Although his 1985 DD Form 214 properly captured his period of active service from 6 June 1980 through 30 July 1985 well as his prior active service of 3 years, 11 months, and 26 days and prior inactive service of 4 months, a change to the regulation in 1982 required item 12a to show the beginning date of the enlistment period for which a DD Form 214 was not issued for enlisted members discharged from immediate reenlistment.  As such, he is entitled to correction of his 
DD Form 214 to show he entered active duty on 10 June 1976.  

5.  Furthermore, since service subsequent to separation from active is not recorded on a DD Form 214, his DD Form 214 ending on 30 July 1985 correctly listed only his total active and prior active service and there is no need to change it.  

6.  Since the applicant had already been issued two separate DD Forms 215, it is now appropriate to issue him a DD Form 214 that corrects his entry date and captures the awards that were missing from his original DD Form 214. 


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:

* voiding his DD Form 214, ending on 30 July 1985
* voiding his DD Forms 215, dated 20 September 2004 and 17 July 2007
* issuing him a new DD Form 214 as follows –

* deleting from item 12a the entry "80-06-06" and adding the entry 
"76-06-10"
* deleting from item 12c the current entry and adding the entry 
"09 01 20"
* deleting from item 12d the entry "03-11-26" and adding the entry 
"00-00-00"
* adding to item 13 the Army Commendation Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar

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 correcting his DD Form 214 to show in his entry date as 11 February 1976 and his retirement date as 13 July 1987. 



      _______ _ 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)                                         AR20130005115



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ABCMR Record of Proceedings (cont)                                         AR20130005115



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