APPLICANT REQUESTS: That his DD Form 214, Report of Separation from Active Duty, be corrected to show that he served on or about 1 ½ years of active duty, and that his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) be corrected to show that he served 5 years of inactive service. He also requests that his medical evaluation board (MEB) be corrected to show that his disqualifying condition did not exist prior to service, that he be given a medical retirement with all back pay, and that his reentry (RE) code be corrected on both his DD Form 214 and his NGB Form 22). He states that the active service listed on his DD Form 214 does not take into consideration his time in the Army National Guard (ARNG), nor the multipliers required to calculate active service (8 or 9 days for every day of active duty served and 2 ½ days for every day served in the ARNG). He also states when the reason for his discharge is corrected, his RE code must be corrected to reflect that change.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the ARNG on 27 August 1977 in pay grade E-1 and entered on his initial active duty for training (IADT) on 20 November 1977 to complete basic combat training and training for his military occupational specialty.
While attended training, on 1 December 1977 an MEB was initiated to determine the applicants medical qualifications for enlistment and retention. The MEB determined that he had high myopia, a condition which was disqualifying for enlistment but not for retention. The MEB also determined that the condition existed prior to his entry on active duty and recommended that he be discharged without disability compensation for his failure to meet established physical standards of enlistment. The applicant concurred with those findings and recommendation.
Accordingly, he was honorably discharged from active duty on 20 December 1977 and returned to his ARNG unit due to his medical disqualification. The DD Form 214 he was issued shows that he served 1 month and 1 day of active service and was assigned an RE code of RE-N/A.
As a result of the applicants release from active duty, he was discharged as a guardsman and as a reserve of the Army on 16 January 1978 for failure to meet medical standards. The NGB Form 22 he was issued shows that he had a total of 4 months and 19 days of inactive service in the ARNG.
Army Regulation 635-200, paragraph 5-9, in effect at the time, provided for the involuntary separation of soldiers who do not meet procurement medical fitness standards due to conditions which did not disqualify them under retention medical fitness standards, and the unfitting conditions existed prior to their entry on active duty. Those disqualifications must be identified within 4 months of these soldiers entry on active duty.
Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment. That chapter included a list of armed forces RE codes, including RA RE codes. Reservists being released from IADT and returned to their ARNG or USAR units are not assigned RE codes, and the entry N/A (not applicable) is to be entered in the space provided for the RE code.
Army Regulation 140-185, Training and Retirement Point Credits and Unit Level Strength Accounting Records, provides guidance for awarding retirement points. This regulation specifies that a reservist or guardsman receives one day of pay and retirement point credit for every day served on active duty. For inactive (drill) duty, the reservist or guardsman receives 1 day of pay and retirement point credit for every 4 hour unit training assembly attended.
Army Regulation 635-5 provides the guidance for what entries to make on a DD Form 214. It states that only periods of active duty will be entered in the space provided on a DD Form 214 to record active service.
Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while performing active or inactive (weekend drill) duty.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 20 December 1977, the date he was released from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 20 December 1980.
The application is dated 3 June 1996 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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