RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060010613 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Mr. Andrew C. Jacobs

Analyst

The following members, a quorum, were present:


Ms. Kathleen Newman

Chairperson

Mr. David Haasenritter

Member

Ms. LaVerne Douglas

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his DD Form 214 (Certificate of Release or Discharge From Active Duty) be corrected to show that he had sufficient service to qualify for Department of Veterans Affairs (DVA) benefits.

2.  The applicant essentially states one of the following actions should be taken:

a.  that Item 28 (Narrative Reason for Separation) of his DD Form 214 should be changed to read “Overseas Returnee;”

b.  that his date of separation be changed to reflect the fact that he was place on terminal leave for the month of November 1991; or

c.  that his date of separation be changed to reflect 2 days travel time back to his home of record.  

3.  The applicant provides his DD Form 214, leave and earning statements from October and November 1991, and a letter from the DVA in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
7 October 1991, the date of his release from active duty.  The application submitted in this case is dated 27 June 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military record show that he enlisted in the Regular Army on 10 October 1989 for a period of 2 years and 17 weeks.  He completed basic and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  He departed for an overseas tour in Turkey on 
12 May 1990.

4.  Headquarters, 528th United States Army Artillery Group Orders Number 
160-03, dated 27 September 1991, reassigned the applicant to the United States Army Transition Point, Fort Dix, New Jersey, with a reporting date of 3 October 1991, and a dated of release from active duty unless changed or rescinded of 
8 October 1991.  These orders also show, in pertinent part, that the applicant had an approved 120 day drop, and that his expiration of term of service (ETS) was changed from 5 February 1992 to 8 October 1991.  The authority for his early release was Army Regulation 635-200 (Enlisted Personnel) and 1st Personnel Command (PERSCOM) message, Date/Time Group 191321Z April 1991.

5.  The applicant returned to the continental United States on 3 October 1991.

6.  Orders, dated 7 October 1991, issued by Headquarters, United States Army Training Center and Fort Dix, Fort Dix, New Jersey changed the applicant’s date of release from active duty from Tuesday, 8 October 1991 to Monday, 7 October 1991.

7.  The applicant’s DD Form 214 shows that he was honorably released from active duty on 7 October 1991.  His DD Form 214 shows, in pertinent part, that he completed 1 year, 11 months, and 28 days of continuous enlisted active duty service from 10 October 1989 through 7 October 1991.
 
8.  The applicant provided leave and earning statements for October and November 1991 which appear to fully pay him for both of these months as if he were still on active duty.  

9.  The applicant requested that Item 28 of his DD Form 214 should be changed to read “Overseas Returnee”; however, there is no provision of regulation that prescribed “Overseas Returnee” as a valid narrative reason for separation.

10.  The applicant also requested that his date of separation be changed to reflect the fact that he was place on terminal leave for the month of November 1991.  However, there is no evidence of the applicant being on active duty or transition leave during the month of November 1991.

11.  The applicant further requested that his date of separation be changed to reflect 2 days travel time back to his home of record.  However, Regular Army Soldiers transitioning from active duty are not considered to be on active duty when traveling from their separation location to their home of record or place from which entered on or ordered to active duty. 


12.  Army Regulation 635-10 (Processing Personnel for Separation) provides, in pertinent part, that Soldiers will be provided with travel and transportation allowances to their home of record or place from which entered on or ordered to active duty.  However, there is no provision which states that travel time of a transitioning Regular Army Soldier to their home of record or place from which entered on or ordered to active duty will be credited as active duty service.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

14.  The DVA administers its benefit programs under its own regulations and policies, and granting DVA benefits is not within the purview of the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show that he had sufficient service to qualify for DVA benefits.

2.  While it is clear that the applicant is attempting to change his military records by any means available to show that he completed 2 full and consecutive years of active duty, evidence of record clearly shows that he only completed 1 year, 11 months, and 28 days of continuous active duty service from 10 October 1989 to 7 October 1991.  

3.  The DVA administers its benefit programs under its own regulations and policies, and granting DVA benefits is not within the purview of the ABCMR.  Therefore, there is no basis for the ABCMR to take action that would result in the applicant obtaining DVA benefits. 

4.  In view of the foregoing, there is no basis for granting relief to the applicant in this case. 

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 October 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
6 October 1994.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KN ___  ___DH __  __LD  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____ Kathleen Newman______
          CHAIRPERSON




INDEX

CASE ID
AR20060010613
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
136.0100.0000
2.
110.0100.0000
3.

4.

5.

6.