IN THE CASE OF:	  

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140016440 


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 DD Form 214 (Report of Separation from Active Duty) to show his date of entry on active duty as 4 May 1975 instead of 20 June 1975.

2.  The applicant states:

* the error in his date of entry on active duty has prevented him from receiving a $250.00 property tax reduction in New Jersey
* New Jersey considers the Vietnam era as ending on 7 May 1975
* he was activated on 4 May 1975

3.  The applicant provides:

* DD Form 214
* letter from Headquarters, U.S. Walson Army Hospital, Fort Dix, dated 11 February 1976
* letter from Headquarters, 1st Battalion, 187th Field Artillery, dated 25 July 1975

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 New York Army National Guard on 17 February 1971 and he was assigned to the Service Battery, 1st Battalion, 187th Field Artillery Regiment, Brooklyn, NY.

3.  A 1st Army Area Form 607 (Reserve Unit Training Schedule), dated 26 March 1975, shows the 1st Battalion, 187th Field Artillery Regiment, scheduled drill (inactive duty training) numbers 39 and 40 on 3 May 1975 and drill numbers 41 and 42 on 4 May 1975.  The training schedule for 3 May 1975 also shows the comment, "Recon[naissance] party to leave armory for [Fort] Dix at 0730."

4.  On 4 May 1975, the applicant was involved in a government motor vehicle accident on Fort Dix, NJ.  He sustained a fractured ulna and dislocated left elbow and he was admitted to U.S. Walson Army Hospital, Fort Dix, NJ, on the same date.  He subsequently underwent surgery on 6 May 1975.

5.  On 18 June 1975, a medical evaluation board determined he was medically unfit and referred him to a physical evaluation board (PEB).

6.  Headquarters, 1st Battalion, 187th Field Artillery Regiment, memorandum, dated 25 July 1975, certified the applicant was injured in the line of duty and was placed on medical hold status pending the results of a medical board.  His status was that of extended inactive duty training for which he would be paid on a daily basis commencing on 5 May 1975 until either returned to duty status or retired by virtue of his medical injury.

7.  A DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 28 July 1975, shows the applicant's accident was determined to be in the line of duty.  This form also shows in:

* item 3b (Called or Ordered to Active Duty for) – 30 days or less


* item 3c (Inactive duty Training) – Title 32, U.S. Code, section 502, Duration –

* Start Date/Time:  3 May 1975/0600 hours
* Finish Date/Time:  4 May 1975/1700 hours

8.  On 6 November 1975, the PEB concluded his injuries rendered him unfit to perform military duties and recommended his placement on the Temporary Disability Retired List (TDRL).  The applicant concurred with the PEB findings.

9.  On 19 February 1976, he was honorably released from active duty and he was placed on the TDRL effective 20 February 1976 with a 40-percent disability rating.

10.  On 8 August 1977, he was found fit for duty and removed from the TDRL effective 31 August 1977.  He declined to reenlist within 90 days following his removal from the TDRL; therefore, he was honorably discharged.

11.  The applicant provided:

	a.  a memorandum from Headquarters, U.S. Walson Army Hospital, dated 11 February 1976, stating he was serving on "active duty for training" on 4 May 1975 when his injury occurred in the line of duty and he was hospitalized during the period 4 May 1975 through 13 November 1975; and

	b.  a memorandum from Headquarters, 1st Battalion, 187th Field Artillery Regiment, dated 25 July 1975, showing his status as extended inactive duty training for which he would be paid on a daily basis commencing on 5 May 1975 until he was either returned to duty status or retired by virtue of his medical injury.

12.  His records are void of and he failed to provide orders showing he was serving in an active duty status on 4 May 1975.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, stated a line-of-duty determination would be considered when a disability was incurred or aggravated while the member was entitled to basic pay by the medical officer concerned, subject to review, change or modification by the medical evaluation board, military treatment facility commander, or adjudicative bodies in the physical disability evaluation system.

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, established policy for preparing and distributing the DD Form 214 and stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show his date of entry on active duty as 4 May 1975 instead of 20 June 1975 was carefully considered.

2.  Notwithstanding the memorandum from Headquarters, U.S. Walson Army Hospital, dated 11 February 1976, records show the applicant was in an inactive duty training status on 4 May 1975.  He was placed in an extended inactive duty training status commencing on 5 May 1975 and authorized continuation of pay and allowances on a daily basis until either returned to duty status or retired by virtue of his medical injury.  A line-of-duty investigation determined his injury was incurred in the line of duty.

3.  Although his complete medical records are not available for Board review, it is presumed he was ordered to active duty effective 20 June 1975 in connection with processing through the Army Physical Disability Evaluation System.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting 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 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)                                         AR20140016440



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ABCMR Record of Proceedings (cont)                                         AR20140016440



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