IN THE CASE OF:
BOARD DATE: 21 July 2015
DOCKET NUMBER: AR20140020685
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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his date of retirement as
1 August 2009 vice 31 July 2009.
2. The applicant states, in effect, that 1 August 2009 fell on a Saturday and the out-processing personnel signed him out with the release date of 31 July 2009. He states his effective retirement date was 1 August 2009.
3. The applicant provides the following:
* a copy of his DD Form 214
* a Certificate of Retirement indicating he was retired from the U.S. Army on 1 August 2009
* Orders 040-0215 issued by Headquarters, U.S. Army Garrison, Fort Sill, Fort Sill, OK, dated 9 February 2009, releasing him from active duty and placing him on the retired list
* a copy of his DD Form 2 (U.S. Uniformed Services Identification Card(Retired))
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 July 1986. He completed military training and was awarded military occupational specialty 88M (Motor Transport Operator). The highest rank/grade he attained during his period of service was sergeant first class/E-7.
3. Orders 040-0215 issued by Headquarters, U.S. Army Garrison, Fort Sill, Fort Sill, OK, dated 9 February 2009, released him from active duty and with an effective date of retirement of 31 July 2009. He was retired in the grade of rank/grade sergeant first class/E-7 and placed on the retired list with a date of
1 August 2009.
4. His DD Form 214 confirms that, on 31 July 2009, he was retired under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) by reason of sufficient service for retirement. He completed 23 years and 14 days of net active service.
5. He provides a Certificate of Retirement indicating he was retired from the U.S. Army on 1 August 2009. He also provides his DD Form 2 that indicates the effective date of 1 August 2009.
6. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 12 (Retirement for Length of Service) sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (Active Army, Army National Guard of the United States (ARNGUS) and United States Army Reserve (USAR)) who are retiring in their enlisted status.
a. Paragraph 12-3 (Statutory Authority) states for Regular Army, ARNGUS, and USAR Soldiers retiring from an active duty status, the date of retirement is the first day of the month following the month in which the Soldier is released from active duty (emphasis added).
b. Paragraph 12-18(2)(b), states retirement orders direct relief from active duty on the last day of the month and placement on the retired list on the first day of the following month.
7. Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his DD Form 214 should be corrected to show his date of retirement as 1 August 2009 vice 31 July 2009 was carefully considered.
2. The evidence of record clearly shows the applicant was released from active duty on 31 July 2009, the last day of the month, and placed on the retired list on 1 August 2009, the first day of the following month, in accordance with applicable laws and regulatory guidance.
3. His DD Form 2 shows 1 August 2009 as the effective date that his retirement benefits would start. His Certificate of Retirement shows the date (1 August 2009) that he was placed on the retired list.
4. There is no evidence of any error or injustice in the applicant's retirement date. In view of the above, the applicant's request should be denied.
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) AR20110020266
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ABCMR Record of Proceedings (cont) AR20140020685
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