BOARD DATE: 19 November 2015 DOCKET NUMBER: AR20150005585 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 military records by issuing him a DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states he was issued a DD Form 220 (Active Duty Report) when he was released from active duty instead of a DD Form 214. He believes this was an error because he performed duty for more than 30 days which required issuance of a DD Form 214. 3. The applicant provides copies of: * DD Form 220, dated 4 November 1992 * Orders D-11-627564, dated 16 November 2006 * AHRC Form 3553-1E (Statement of Military Service) issued by the U.S. Army Human Resources Command (HRC), dated 3 February 2015 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. A DD Form 220, as provided by the applicant, dated 4 November 1992, shows he entered active duty on 29 June 1992. He was a second lieutenant at the time. On 12 November 1992 his tour of duty was terminated. This document shows his active duty as 134 days. (4 months and 14 days based on a 30 day average for each month). 3. An information paper from the Veterans Inquiry Section, Human Resource Service Center, dated 3 February 2015, concerning the applicant’s request for a DD Form 214, states that due to incomplete records, a DD Form 214 could not be provided. An AHRC Form 3553-1E was issued with The Adjutant General’s official seal as proof of authenticity. 4. Orders D-11-627564, HRC, dated 16 November 2006, announced the applicant’s honorable discharge from the United States Army Reserve (USAR) Control Group (Reinforcement) effective the same day. 5. Army Regulation 635-5 (Separation Documents), as in effect at the time, provided detailed instructions for completing separation documents, including the DD Form 214. a. It stated that the DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty. It provided a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 was not intended to have any legal effect on termination of a Soldier’s service. b. It provided that a DD Form 214 would be prepared for Reserve component (RC) Soldiers completing 90 days or more of continuous active duty for training, full-time guard duty, active duty for special work, temporary tours of active duty, or Active Guard Reserve service. c. It stated that RC Soldiers mobilized under sections 12301(a), 12302, or 12304, Title 10, U.S. Code (USC), and Army National Guard Soldiers called into Federal service under chapter 15, or section 12406, Title 10, USC, regardless of length of mobilization, when transitioned from active duty would receive a DD Form 214. d. It stated that RC Soldiers who entered on extended active duty for a specified period of time and are retained beyond their initial contractual release date without a break in active duty were not issued a DD Form 214. 6. The doctrine of latches is based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights. Neglecting to assert a right or claim until after an unreasonable lapse of time and other circumstances, can prejudice an adverse party. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his military records should be corrected by issuing him a DD Form 214 for the period 29 June to 12 November 1992. 2. The available evidence shows the applicant was issued a DD Form 220 for the period of active service in question. There is no evidence showing he questioned the validity or appropriateness of this document at the time of its issuance. 3. Due to the great delay and lapse of time, compounded by a lack of specific documents in the applicant’s personnel records, it is now impossible to determine whether the issuance of the DD Form 220 was made in error. 4. Furthermore, even if an error could be determined, the available evidence is insufficient to provide the necessary information with which to properly and accurately prepare a DD Form 214 for the period in question. 5. The available evidence shows that a proper authority has issued the applicant a statement of service for the period in question. This would be the only remedy available to this Board. Because this action has already been accomplished, there is no further corrective action available to the Board. Therefore, 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) AR20070016793 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005585 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1