IN THE CASE OF:	  

		BOARD DATE:	  14 October 2009

		DOCKET NUMBER:  AR20090011814 


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 (Armed Forces of the United States Report of Transfer or Discharge) to show his date of separation from the Army as 3 August 1970.

2.  The applicant states that his DD Form 214 shows he was assigned in the Republic of Vietnam (RVN) from 4 August 1969 to 3 August 1970 and that his date of separation is shown as 3 July 1970.  He further states he came back from the RVN on 3 August 1970 and questions whether this error shorted him 1 month of pay.

3.  The applicant provides a copy of his DD Form 214 in support of his application.

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's record shows he was inducted and entered active duty on 23 September 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty 31M (Radio Relay Carrier Attendant).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item     31 (Foreign Service) that he was assigned to the RVN for the period 4 August 1969 to 3 August 1970.

4.  The applicant's DA Form 20 shows in item 38 (Record of Assignments) that the applicant was released from active duty on 3 August 1970.  His separation orders show he was to be released from active duty on 3 August 1970.

5.  The applicant's record is void of any documents to show the pay and allowances he received during his tenure in the Army.

6.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  In pertinent part, the regulation states that Item 12b will show the Soldier's transition date.  This date may not be the contractual date if the Soldier is separated early, voluntarily extends or is extended to make up lost time, or retained on active duty for the convenience of the government.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the effective date of separation on his DD Form 214 should be corrected was carefully considered and determined to have merit.

2.  The applicant was issued a DD Form 214 on which his separation date appears as "3 July 1970."  However, the evidence of record shows the applicant's separation date from the Army was 3 August 1970.  Therefore, the applicant is entitled to the correction of his DD Form 214 to show this date.

3.  It is doubtful that the applicant’s pay was affected by the error on his DD Form 214.  Finance offices generally follow the information provided in orders rather than on the DD Form 214.  The applicant would have to query the Defense Finance and Accounting Service for a definitive answer on his pay question, however.
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 providing the applicant a corrected DD Form 214 showing the date "3 August 1970" in item 11d (Effective Date).




      ___________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)                                         AR20090011814



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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