IN THE CASE OF:	  

		BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130006811 


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 his separation date on his DD Form 
214 (Certificate of Release or Discharge from Active Duty) to show 
16 September 2005 instead of 29 July 2005.

2.  The applicant states he was allowed to go on terminal leave seven weeks prior to his expiration of term of service (ETS) date.  Members of his Personnel Administration Center (PAC) told him he could use unspent leave days as terminal leave.  He is told by other veterans "that in such situations the post/battalion PAC office lists the actual ETS date, and not the date at which one signs out of post and begins terminal leave, as the official end/ETS date on the DD-214.  In my case this seems not to have been done, and the sign out date, rather than my ETS date, was listed on my DD-214."  

3.  He does not know why the date he signed out on terminal leave is on his 
DD Form 214 rather than his ETS date.  He currently attends Columbia University, which generously contributes to the "Yellow Ribbon Program."  To be eligible requires a 3-year term of service.  Eligibility might make a substantial difference in his financial circumstances and education opportunities.  As the older GI Bill does not to his knowledge have any sliding scale of benefits based on time in service, it was only after applying for the Yellow Ribbon Program benefits that he became aware of this error.




4.  The applicant provides: 

* DA Form 3286-64 (Statement for Enlistment United States Army Station/Unit/Command/Area Program), dated 17 September 2002
* a Personal In Nature printout roster
* a memorandum from Headquarters, 1st Battalion, 75th Ranger Regiment, dated 12 September 2004
* Orders 171-1, issued by Military Entrance Processing Station, dated 
17 September 2002
* DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States)
* a letter from the Army Continuing Education System, dated 25 July 2005
* DD Form 2808 (Report of Medical Examination) dated 19 July 2005
* DA Form 3286-59 (Statement for Enlistment United States Army Enlistment Program U.S. Army Delayed Enlistment Program), dated
17 December 2002
* page 2 DA Form 669 Report

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 Regular Army on 17 September 2002 for a 
3-year term of service.  His ETS was 16 September 2005.

3.  Orders 180-354, dated 29 June 2005, issued by Headquarters, Fort Stewart, GA, show he was to be released from active duty on 29 July 2005.




4.  He was honorably released from active duty on 29 July 2005 under the provisions of paragraph 5-16 of Army Regulation 635-200 by reason of early release to attend school.  His DD Form 214 shows he completed 2 years, 
10 months, and 13 days of creditable active military service.  Item 16 (Days Accrued Leave Paid) shows the entry "39.5."  Item 18 (Remarks) shows the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE."  

5.  His record is void of documentation showing he was authorized to take transition leave.

6.  An email from a representative of the Defense Finance and Accounting Services (DFAS), dated 13 May 2013, verified that the applicant was released from active duty on 29 July 2005 by reason of early release to attend school. 

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the Army’s enlisted separation policy.  Paragraph 5-16, in effect at the time, provided the policy for early separation to further education.  It stated, in pertinent part, that Soldiers could be discharged or released from active duty for the convenience of the Government, up to 90 days before ETS of service, in order to attend a specific term at a college, university, vocational school, or technical school.  Accrued leave will be used to the maximum extent possible, as transition leave, in conjunction with early separation under this paragraph.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation date on his DD Form 214 should be corrected to show 16 September 2005 instead of 29 July 2005.

2.  His records confirm he was separated under the provisions of paragraph 5-16, Army Regulation 635-200 to attend school.  Although the regulation states accrued leave will be used to the maximum extent possible as transition leave, there is no evidence indicating he took transition leave.  The fact that he was paid 39.5 days of accrued leave indicates he did not take transition leave.  If he did take some transition leave, there is no evidence to show it affected the date of his approved early separation.  In the absence of evidence showing otherwise, it must be presumed that the separation date shown on his DD Form 214 is correct.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20130006811





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ABCMR Record of Proceedings (cont)                                         AR20130006811



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