RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 January 2008
	DOCKET NUMBER:  AR20070009170 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry Jr

Chairperson

Mr. John T. Meixell

Member

Mr. Rowland C. Heflin

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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 1 December 2000 be changed to show the 5th award of the Army Achievement Medal (AAM).  He further requests that his net active service be changed from 9 years, 3 months, and 6 days to 9 years, 3 months, and 26 days.

2.  The applicant states that the AAM 5th award was not included on his DD Form 214.  He further states, in effect, that during his delayed enlistment program (DEP) status he performed mandatory training duties and that his net active service on his DD Form 214 should be corrected.  

3.  The applicant provides a memorandum from the United States Transportation Command, dated 26 June 2007; a DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 5 September 1990; a DD Form 
4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 14 September 1990; an undated DA Form 3286-59/1 (Statement for Enlistment United States Army Enlistment Option US Army Delayed Enlistment Program), and Headquarters, 179th Military Police Detachment Permanent Orders Number 256-1, dated 12 September 2000.  

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.  A DD Form 4/1, dated 14 September 1990, shows that the applicant enlisted in the United States Army Reserve (USAR) DEP with a date of enlistment in the Regular Army of 26 August 1991.

3.  A DD Form 4/2, dated 26 August 1991, shows that the applicant was discharged from the USAR and enlisted in the Regular Army on 26 August 1991. 

4.  The applicant's Enlisted Record Brief (ERB), prepared 15 August 2000, shows four awards of the Army Achievement Medal.

5.  Headquarters, 179th Military Police Detachment Permanent Orders Number 256-1, dated 12 September 2000, shows that the applicant was awarded the Army Achievement Medal.

6.  On 1 December 2000, the applicant was honorably released from active duty.
Item 12c (Net Active Service This Period) of his DD Form 214 with the period ending 1 December 2000 shows 9 years, 3 months, and 6 days.  Item 
13 (Decorations, Medals, Commendations, Citations and Campaign Ribbons or Authorized) shows the applicant was awarded the Army Achievement Medal (4th award).

7.  The applicant provided a memorandum from the United States Transportation Command, dated 26 June 2007.  It states, in effect, that after review of the applicant's DD Form 214, DD Form 1966, and information supplied by a recruiting station that the "recruit requirements while performing mandatory training during delayed enlistment status, it has been determined that a correction of dates of service is required."  The memorandum further stated that the applicant's net active service in the U.S. Army should be changed from 9 years, 3 months, 6 days to 9 years, 3 months, and 26 days.

8.  Army Regulation 140-1 provides policy guidance on the mission, organization and training of the USAR.  It states in pertinent part that the USAR Control Group (Delayed Entry) consists of members enlisted under Army Regulation 601-210.  They are in a nonpay status and will not take part in Reserve training.  While assigned to the group, members are exempt from involuntary order to active duty except during a period of mobilization.

9.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the first oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Army Achievement Medal.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant was awarded an additional award of the Army Achievement Medal.  His DD Form 214 should be amended to add the Army Achievement Medal with 4 Oak Leaf Clusters.

2.  The applicant contends that his net active service should be changed from 
9 years, 3 months, and 6 days to 9 years, 3 months, and 26 days due to mandatory training during DEP.  However, Soldiers in the DEP are in a nonpay status, are not on active duty, and are even exempt from involuntary order to active duty except during a period of mobilization.  Evidence of record shows the applicant enlisted in the Regular Army on 26 August 1991 and was honorably separated from active duty on 1 December 2000.  Therefore, his net active service is properly shown in item 12c of his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__HOF __  __JTM __  __RCH__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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 for the period ending 1 December 2000 to show the award of the Army Achievement Medal with 4 Oak Leaf Clusters.

2.  The Board further determined that 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 that pertains to changing the net active service in item 12c of his DD Form 214.




	____Hubert O. Fry Jr__
          		CHAIRPERSON




INDEX

CASE ID
AR20070009170
SUFFIX

RECON

DATE BOARDED
17 JANUARY 2008
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
107.0025.0000
2.
112.0000.0000
3.

4.

5.

6.