ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 September 2019

	DOCKET NUMBER:  AR20180003920


APPLICANT REQUESTS:  a correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change:

* item 12a - Date Entered Active Duty this Period to:  27 December 1979 (791227)
* item 12b - Separation Date this Period to:  15 April 1980 (800415)
* an appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states his entry date was 27 December 1979 and he came home on 15 April 1980.  He assumed his date was deliberately changed to 23 Jan 1980 to 10 April 1980.  In addition, he would like to seek veteran affair benefits.  

4.  A review of the applicant’s service record shows:

	a.  He entered the Regular Army on 23 January 1980. 

	b.  His immediate commander notified the applicant of his proposal to separate him under the provisions of Army Regulation (AR), paragraph 5-33, Trainee Discharge Program (TDP) on 19 March 1980.  

	c.  He acknowledged the notification of the proposed separation under the provision of paragraph 5-33, TDP on 19 March 1980. 

	d.  The immediate commander recommended the applicant for discharge on  19 March 1980, under the TDP.  The intermediate commander recommended approval.
	e.  The separation authority approved the discharge and he was issued Orders Number 69-115, dated 8 April 1980 showing his date of discharge (unless changed or rescinded):  10 April 1980.  
	f.  His DD Form 214 shows he was honorably discharged on 10 April 1980 and the narrative reason for separation is marginal or non-productive performance.  It also shows in:

* item 12a – Date Entered Active Duty (AD) this period:  800123 (23 January 1980)
* item 12b – Separation Date this Period:  800410 (10 April 1980) 
* item 12c – Net Active Service this Period:  2 months 18 days
* item 12e – Total Prior Inactive Service:  1 month, 5 days (delayed entry time 18 December 1979 to 22 January 1980 plus one day)

	g.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

5.  By regulation (AR 635-5), the purpose of the separation document is to provide the individual with documentary evidence of their military service.  The version of the regulation in effect at the time stated Item 30 shows mandatory entries.  One of those entries pertained to time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after ETS will be entered.  

6.  By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief was not warranted.  Based upon the documentary evidence provided by the applicant and found within the military service record, the Board found that both his entry date (based on his enlistment record) and separation date (based on the orders) are correctly listed on his DD Form 214.  Therefore, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s military reord.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

	 
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  The version of the regulation in effect at the time stated Item 30 shows mandatory entries.  One of those entries pertained to time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after ETS will be entered.  

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20180003920


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