IN THE CASE OF:	  

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20140004620 


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 16 November 1975 DD Form 214 (Report of Separation from Active Duty) and 5 September 1981 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show active duty service (ADS) credit that was granted by the Army Board for Correction of Military Records (ABCMR) to correct his military service records.

2.  The applicant states that he served on AD from 16 June 1964 until 
16 November 1975.  He subsequently served on AD from 4 March 1981 until 
5 September 1981.  In response to a lawsuit against the U.S. Army that was settled on 28 February 1985, the ABCMR in Docket Number AC76-00088A, dated 6 March 1985, determined that his records were to be corrected with constructive ADS from 16 November 1976 until 28 February 1977.  However, the two previously-issued DD Forms 214 were never corrected/updated.

3.  The applicant provides copies of –

* his four DD Forms 214
* ABCMR Docket Number AC76-00088A, dated 6 March 1985 (page 6)
* ABCMR memorandum, dated 7 May 2003

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 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 app cant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Incorporated herein by reference are military records which were summarized in previous considerations of the applicant's case by the ABCMR in:

   a.  ABCMR Proceedings, dated 10 December 1975 and 22 September 1976, that considered his records as part of a class action, that the officers' military records be corrected to show they were promoted to the grade of major (MAJ), Army of the United States (AUS), under the primary zone of either the 1974 or 1975 MAJ AUS selection criteria with restoration to AD.  Their applications were denied.

   b.  ABCMR Docket AC76-00088A, dated 6 March 1985, that reconsidered his case in view of a Court of Claims decision in the case.  The Board found the applicant was transferred to the U.S. Army Reserve (USAR) on 16 November 1975 with 16 years, 3 months, and 26 days of active service.  It determined the applicant should have been constructively retained on AD from the time of his separation (16 November 1975) until his new release date, as established by the Court of Claims, of 28 February 1977.  The Board directed that all Department of the Army record be corrected to show:

    	(1)  his involuntary release from active duty (REFRAD) on 16 November 1975 was, and is, void and without force or effect;

    	(2)  that he was credited with constructive ADS in the grade of captain (CPT), with pay and  allowances, from 16 November 1975 until 28 February 1977; and 

    	(3)  on 1 March 1977, he was involuntarily REFRAD in the grade of CPT.

   c.  Headquarters, Department of the Army, Office of The Adjutant General, Washington, DC, letter, dated 8 May 1985, notified the applicant that the ABCMR had corrected his records in accordance with the findings (i.e., ABCMR Docket AC76-00088A, dated 6 March 1985) and that a DD Form 215 (Correction to 
DD Form 214) was enclosed.

   d.  ABCMR Docket AC76-00088B, dated 2 July 1986, that reconsidered the Board's decision to show that the applicant was retained on AD until he completed 20 years of active Federal service (AFS) for retirement purposes in lieu of being discharged on 28 February 1977.  The Board determined the applicant's constructive ADS (from 16 November 1975 until 28 February 1977) of 1 year, 3 months, and 12 days, coupled with his prior total AFS of 16 years, 
3 months, and 26 days, totaled 17 years, “6 months, and 9 days” of active federal service (AFS).  Therefore, the applicant, having less than 18 years AFS as of 
28 February 1977, did not qualify for retention on AD until he completed 20 years of service for retirement purposes.  Accordingly, his application was denied.
   
   e.  On 24 May 2002, the applicant requested reconsideration of ABCMR Docket AC76-00088B, dated 2 July 1986.  On 7 May 2003, he was advised that his application did not contain evidence that meets the reconsideration criteria and it was returned without action.

3.  A review of the applicant's military personnel records revealed, in pertinent part, the following –

* he had honorable enlisted service in the Army National Guard (ARNG) and Regular Army (RA) from 10 March 1958 through 15 June 1964
* he was appointed as a Reserve commissioned officer in the rank of second lieutenant on 16 June 1964

4.  A DD Form 214 shows was ordered to active duty for training (ADT) on
21 June 1959, honorably released from ADT on 18 December 1959, and transferred to the Georgia ARNG.  He had completed 5 months and 28 days of net active service this period/total active service.

5.  A DD Form 214 shows he enlisted in the RA on 26 June 1962 and was honorably discharged on 15 June 1964 to accept a Reserve commission.  He had completed 1 year, 11 months, and 21 days of net active service this period.

6.  A DD Form 214 shows he entered active duty on 16 June 1964, was honorably REFRAD on 16 November 1975, and transferred to the USAR Control Group (Reinforcement).  It also shows in item 18 (Record of Service) –

* block a (Net Active Service This Period):  11 years, 5 months, 1 day
* block b (Prior Active Service):  4 years, 10 months, 25 days
* block c (Total Active Service ):  16 years, 3 months, 26 days
* block d (Prior Inactive Service ):  1 year, 4 months, 10 days
* block e (Total Service for Pay):  17 years, 8 months, 6 days

7.  The applicant was promoted to MAJ (O-4) on 14 June 1977.

8.  A DD Form 214 shows he entered ADT on 4 March 1981, was honorably released from ADT on 5 September 1981, and transferred to the USAR Control Group (Reinforcement).  It also shows in item 12 (Record of Service) –

* block c (Net Active Service This Period):  0 years, 6 months, 2 days
* block d (Total Prior Active Service):  "DNA"  (Does Not Apply)
* block e (Total Prior Inactive Service ):  "DNA"

9.  USAR Personnel Center, St. Louis, MO, Orders Number C-07-912332, dated 16 July 1985, assigned the applicant to the USAR Control Group (Retired Reserve) effective 31 December 1984.

10.  A DD Form 108 (Application for Retired Pay Benefits), submitted by the applicant on 26 September 2000, shows he claimed the ADS credit from 
16 November 1975 through 28 February 1977.

11.  The applicant's Retirement Points Accounting System, Summary Points Inquiry/Update, shows he was credited with ADS from 16 November 1975 through 28 February 1977.

12.  USAR Personnel Command, St. Louis, MO, Orders Number P-11-306963, dated 6 November 2000, placed the applicant on the retired list effective
10 March 2001.

13.  A review of the applicant's military personnel records failed to reveal a
DD Form 215 (Correction to DD Form 214) pertaining to either of his last two 
DD Forms 214.

14.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the
DD Form 214.  It states that the source documents for entering information on the DD Form 214 will be the Enlisted Qualification Record, Officer Qualification Record, Personnel Qualification Record, Officer Record Brief, enlistment/ reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.  The instructions for the Record of Service section, are as follows -

* Net Active Service This Period, enter the amount of service this period (subtract date of entry this period from separation date)
* Total Prior Active Service, enter the total amount of prior active military service
* Total Active Service, enter the total amount of active service by adding net active service this period and total prior active service
* Total Prior Inactive Service, enter the total amount of prior inactive service

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record shows the applicant had creditable service, as follows –

* USAR (enlisted) from 10 March 1958 through 20 June 1959
* USAR (enlisted) ADT from 21 June 1959 through 18 December 1959
* USAR (enlisted) from 19 December 1959 through 25 June 1962
* RA (enlisted) AD from 26 June 1962 through 15 June 1964
* USAR (officer) AD from 16 June 1964 through 28 February 1977
* USAR (officer) from 1 March 1977 through 3 March 1981
* ADT (officer) AD from 4 March 1981 through 5 September 1981
* USAR (officer) from 6 September 1981through 31 December 1984

2.  The evidence of record shows that in ABCMR Docket AC76-00088A, dated
6 March 1985, it was determined the applicant had completed 16 years, 
3 months, and 26 days of AFS as of 16 November 1975.  It also shows he was granted constructive ADS credit of 1 year, 3 months, and 12 days for the period from 16 November 1975 through 28 February 1977.
   
   a.  Computation of the 6 March 1985 Board's findings shows the following:

		    16  03  26			prior AFS (thru 16 November 1975)
		+  01  03  12			constructive ADS (thru 28 February 1977)
		=  17  06 	38 			or
		    17  07  08			17 years, 7 months, 8 days total AFS (thru 
   28 February 1977)

		    17  07  08			total prior active service (thru 28 February 1977)
		+  00  06  02			net active service (4 March thru 5 September 1981)
		=  17  13 	10 			or
		    18  01  10			18 years, 1 month, 10 days total AFS (thru
   5 September 1981)


   b.  Computation of the applicant's service for purposes of correcting his
16 November 1975 DD Form 214 shows the following:

       11  05  01			net active service (16 June 1964 thru 16 November
   1975)
		+  01  03  12			constructive ADS (thru 28 February 1977)
		=  12  08 	13 			adjusted net active service (thru 28 February 1977)

       12  08  13			adjusted net active service (16 June 1964 thru 
   28 February 1977)
		+  04  10  25			total prior active service (from the DD Form 214)
		=  16  18 	38			or
		    17  07  08			17 years, 7 months, 8 days total AFS (thru 
   28 February 1977)

       17  07  08			total active service (thru 28 February 1977)
		+  01  04  10			total prior inactive service (from the DD Form 214)
		=  18  11 	18 			total service for pay (thru 28 February 1977)

   c.  Computation of the applicant's service for purposes of correcting his
5 September 1981 DD Form 214 shows the following:

1981 03  04			date ordered to ADT (4 March 1981)
          - 1977  03  01			date transferred to USAR (1 March 1977)
	    =    04   00	 03 		net inactive service for this period of USAR service

       01  04  10			total prior inactive service (as of 16 June 1964)
		+  04  00  03			net inactive service (1 March 1977 thru 3 March 1981)
		=  05  04 	13 			total inactive service (as of 5 September 1981)

       00  06  02			net active service (4 March 1981 thru 5 September 
   						1981)
		+  17  07  08			total prior active service
		=  17  13 	10 			or
       18  01  10			18 years, 1 month, 10 days total AFS (thru 
   5 September 1981)






3.  The evidence of record shows that, on 6 March 1985, the applicant was informed that a DD Form 215 was issued to correct his records.  However, the applicant's records do not contain a DD Form 215 and, in his application to this Board, the applicant contends that he did not receive a DD Form 215 to correct either of the two DD Forms 214 he was issued (i.e., in 1975 and 1981).

4.  Therefore, in view of all of the foregoing, it would be appropriate to correct the last two DD Forms 214 issued to the applicant, as recommended below.

BOARD VOTE:

___x____  ____x___  ___x____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by –

* correcting the 16 November 1975 DD Form 214, as follows –

* deleting the entry from item 9d (Effective Date) and adding the entry "77  02  28"
* deleting the entry from item 18a and adding the entry "12  08  13"
* deleting the entry from item 18c and adding the entry "17  07  08"
* deleting the entry from item 18e and adding the entry "18  11  18"











* correcting the 5 September 1981 DD Form 214, as follows –

* deleting the entry from item 12d and adding the entry "17  07  08"
* deleting the entry from item 12e and adding the entry "05  04  13"




      _______ _   _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)                                         AR20140004620



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ABCMR Record of Proceedings (cont)                                         AR20140004620



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