IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150017290 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x___ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150017290 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show his date of entry in item 12a of this form as 17 November 1979. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application in excess of the relief described above. _____________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. IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150017290 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 the date of entry on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show 17 November 1979 instead of 17 November 1981 as the date he entered military service. He requests his date of discharge be changed. Additionally, he requests an upgrade of his under other than honorable condition (UOTHC) discharge. 2. He states his date of entry and date of discharge on his DD Form 214 are wrong. He also pleas for a discharge upgrade. 3. He provides his DD Form 214. 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 requests his discharge UOTHC be upgraded. A review of the files indicates the ABCMR acted on an earlier application for the same request and as such, his recent application was accepted as a request for reconsideration of ABCMR Docket Number AR20090010175. This case was considered and denied by the ABCMR on 8 December 2009. Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for correction of military records as set forth in Title 10, U.S. Code, sections 1552 and 534. The law [National Defense Authorization Act 2017] states that any request for reconsideration of a determination of a board, no matter when filed, shall be reconsidered by a board if supported by materials not previously presented to or considered by the board in making such a determination. As the applicant did not submit new materials or argument to support his request for reconsideration of his discharge upgrade, it will not be discussed further in these Proceedings. 3. The applicant's DD Form 4 (Enlistment or Reenlistment Document – Armed Forces of the United States) contained in his military personnel file shows he enlisted in the U.S. Army Reserve on 17 November 1979 and he entered initial active duty training on the same date. 4. His DA Form 2-1 (Personnel Qualification Record – Part II) shows, effective 17 November 1979, he was a trainee at Company D, 1st Battalion, 319th Regiment, 2nd Brigade, Fort Knox, KY. 5. Headquarters, U.S. Army Infantry Center, Fort Benning, GA, issued Orders 59-42 on 9 September 1981 discharging the applicant the same date. 6. Item 12a (Date Entered Active Duty This Period) of his DD Form 214, lists 17 November 1981. This form also shows he was discharged on 9 September 1981 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct (conviction by civil court) with a characterization of service listed as UOTHC. Item 29 (Dates of Lost Time This Period) shows an extensive history of lost time: * 31 July to 3 August 1980 (4 days) * 13 August to 20 August 1980 (8 days) * 22 August to 4 September 1980 (14 days) * 5 September 1980 to 9 September 1981 (370 days) REFERENCES: Army Regulation 635-5 (Separation Documents), in effect at the time, establishes standardized policy for preparing and distributing the DD Form 214. The regulation states that 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. It requires the preparer to enter in item 12a the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued. Item 12b (Separation Date This Period) should reflect the date of discharge/separation as shown on discharge/separation orders. Item 12c (Net Active Service This Period) will show the total service less time lost (emphasis added) under Title 10, U.S. Code, section 972, and time lost after expiration of term of service. DISCUSSION: 1. A clear error exists on the applicant's DD Form 214. He could not have been released from active duty prior to the date he entered. The applicant's enlistment documents, as well as his DA Form 2-1, verify his date of entry on active duty as 17 November 1979. 2. Concerning his date of separation on his DD Form 214, there appears to be no error, as his date of separation is the date shown on his separation orders. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017290 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017290 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2