BOARD DATE: 27 August 2014
DOCKET NUMBER: AR20140000687
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 the discharge date shown in item 9d (Effective Date) of his DD Form 214 (Report of Separation from Active Duty) ending on 4 April 1979.
2. The applicant states:
a. He was actually discharged on 5 June 1979. Upon his return from South Korea he reported to the Presidio, CA, and worked at the Oakland Army Base as well as the Presidio until 5 June 1979, the exact date of his graduation from West Point four years prior. He was required to telephone in each day when he was off base working at the Oakland Army Base. He dutifully reported to work each day until the anniversary date of his graduation from West Point on 5 June 1979.
b. It is his sincere hope to correct the record since he served in the military during that time, the two months in question, on post and performed duties required of him through 5 June 1979. He later served in the U.S. Army Reserve (USAR) and was inactive for approximately six years following his separation. Unfortunately, he lost many of his records when his home was completely destroyed during Hurricane Sandy.
c. His home of record at the time was XX Saxton Avenue, Sayville, NY. He continued his residence in the Bay Area reporting to work through 5 June 1979.
3. The applicant provides no additional evidence.
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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.
2. After having had prior enlisted service, the applicant was a West Point cadet from 1 July 1970 through 4 June 1974.
3. He was appointed in the Regular Army (RA), as a second lieutenant, on 5 June 1974, following his graduation from the U.S. Military Academy at West Point. He served in Korea from 13 March 1978 through on or about 3 April 1979.
4. On 10 October 1978, while in Korea, he submitted a request for unqualified resignation from the Army with an effective date of 12 March 1979 for the purpose fulfilling his law school aspirations and requested an appointment in the USAR upon relocation.
5. On 5 January 1979, his unqualified resignation was approved with an effective date of 4 April 1979.
6. Orders Number 55-10, issued by Headquarters, 2nd Infantry Division, on 8 March 1979, reassigned him to the Oakland Army Base for separation processing with a report date of 3 April 1979 with a scheduled date of discharge of 4 April 1979.
7. He was honorably discharged on 4 April 1979. He completed 4 years and 10 months of active service. Item 9d of his DD Form 214 lists the date of 4 April 1979.
8. He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 4 April 1979. He was honorably discharged from the USAR on 22 September 1987.
9. Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214. It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty. The regulation stated item 9d would list the Soldiers transition date.
DISCUSSION AND CONCLUSIONS:
The applicant was appointed in the RA on 5 June 1974 from West Point. Following approval of his voluntary request for unqualified resignation, he was honorably discharged on 4 April 1979 and appointed in the USAR on the same day. His date of discharge from active duty is correctly listed in item 9d of his DD Form 214. There is no evidence of record and he provided none to show he was serving on active duty through 5 June 1979. Therefore, he is not entitled to the 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) AR20140000687
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ABCMR Record of Proceedings (cont) AR20140000687
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