RECORD OF PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:           November 25, 2003                  
	DOCKET NUMBE      AR2003089347

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Yolanda Maldonado		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his Report of Separation (DD Form 214) be corrected to reflect that he served on active duty in the Regular Army for 6 months.

2.  The applicant states, in effect, that he joined the United States Army Reserve (USAR) under a program where he served on active duty with the Regular Army for 6 months and then spent 5 ½ years as a part of the active Reserve.  However, at the time of his discharge, his DD Form 214 incorrectly reflects that his service was "Active Duty for Training" instead of "Active Duty", which precludes him from obtaining Veterans benefits.  He goes on to state that there are other veterans/Reservists who served in the same timeframe who are receiving benefits and he desires to have his records corrected so that he may also.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error, which occurred on 7 March 1958.  The application submitted in this case is dated 15 May 2002.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the USAR in Kearny, New Jersey, on 9 May 1957, for a period of 8 years.  At the time of his enlistment he signed a statement in which he acknowledged that he understood that he would be required to enter active duty for training (ACDUTRA) within 120 days from that date unless as a high school student he was granted a longer delay and that if he entered ACDUTRA prior to becoming 18½ years of age he would have 3 years of Ready Reserve service after completing ACDUTRA.  He further acknowledged that if he entered ACDUTRA after becoming 18½ years of age, unless authorized a delay because of being in high school, he would have 5½ years of Ready Reserve service after completing his 6 months of ACDUTRA.

4.  On 6 August 1957, orders were published which ordered the applicant to ACDUTRA for a period of 6 months, effective 8 September 1957.  The orders also specified that unless sooner relieved, the applicant would be relieved from training on 7 March 1958. 

5.  On 9 May 1957, he was ordered to ACDUTRA and was transferred to Fort Dix, New Jersey, to undergo his basic combat training (BCT).  He successfully completed his BCT and was transferred to Fort Gordon, Georgia, to undergo his advanced individual training (AIT) as a telephone instrument repairman.

6.  He successfully completed his AIT and on 7 March 1958, he was released from ACDUTRA and was returned to his USAR unit.  He had served 6 months of ACDUTRA

7.  He was transferred to the USAR Control Group (Standby) on 1 March 1963 and was honorably discharged from the USAR in the pay grade of E-6 on 30 April 1965.  

8.  Army Regulation 635-5 serves as the authority for the issuance of a DD Form 214.  It provides, in pertinent part, that a DD Form 214 will be issued to Reserve Component soldiers completing their initial ACDUTRA that results in the award of a military occupational specialty (MOS).

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding that the Board does not have the authority to authorize benefits administered by the Department of Veterans Affairs, there is no basis to change the applicant records to reflect anything other than what it currently reflects. 

2.  The evidence of record clearly shows what the conditions of his enlistment were at the time and there is nothing to suggest that he was otherwise mislead or deceived in regards to his ACDUTRA requirements.

3.  He entered ACDUTRA for a period of 6 months and was released from ACDUTRA in accordance with the terms of his contract and his DD Form 214 accurately reflects those facts.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 30 April 1965; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 April 1968.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

YM__  __LEM___  __RO_____    DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		Raymond V. O’Connor
		    CHAIRPERSON

INDEX

CASE ID	AR2003089347	
SUFFIX		
RECON		
DATE BOARDED	2003/11/25	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.110.0200	191/CHG RSN	
2.		
3.		
4.		
5.		
6.