IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20070013662 


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, in effect, that his records be corrected to show his service with the Georgia Army National Guard (GAARNG), in support of the 1994 Albany, Georgia, floods.

2.  The applicant states, in effect, that he served on State Active Duty (SAD) orders and provided flood relief with the GAARNG and with the 148th Medical Company, Dobbins Air National Guard, during July 1994 and 1995.  He adds that the published SAD orders would cover those Soldiers identified to provide relief effort in the event the Soldier was injured and required medical care.

3.  In support of his request, the applicant submits a copy of his W-2, Wage and Tax Statement for 1994 and 1995; a copy of his Record of Emergency Data, dated 30 April 1994; and a copy of a letter written to the Board of Veterans' Appeals, on 22 December 2006, by a medical doctor in his behalf.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel has remained silent and has allowed the applicant to present his request to the Board.

2.  Counsel has provided no additional documents in behalf of the applicant's request.

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.  An Automated Separation Document in Lieu of NGB Form 22, National Guard Bureau Report of Separation and Record of Service, with an effective date of separation of 1 August 1995, shows the applicant served with the 148th Medical Company, GAARNG, for the period 26 April 1994 through 1 August 1995.  The applicant was honorably discharged, in the rank and pay grade Specialist, E-4, under the provisions of NGR 600-200, Paragraph 8-26q.  At the time of the applicant's discharge, he had completed 1 year, 3 months, and 6 days of service in that enlistment with the GAARNG.

3.  A GAARNG Form 0056, Unit Information, which was completed on the applicant, on 26 April 1994, shows he had prior enlisted service.  This form shows the applicant's PEBD (Pay Entry Basic Date) as 26 April 1982, his ADSD (Active Duty Service Date) as 14 November 1993, and that he previously held the MOS (Military Occupational Specialty) 63W (Wheeled Vehicle Repairer).  The form also shows that the applicant was not required to undergo initial active duty for training since he had prior service.

4.  The applicant provided no orders to show he was ordered to active duty in support of disaster relief efforts related to the Albany, Georgia, flood in 1994.  The applicant did submit, in response to his opportunity to submit a rebuttal to an advisory opinion, what he alleges to be the SAD orders.

5.  In the processing of this case, an advisory opinion was requested of the Departments of the Army and Air Force, National Guard Bureau, Chief, Personnel Division, Arlington, Virginia.

6.  The Chief, Personnel Division, National Guard Bureau, provided a memorandum of support on 21 August 2007.  In this memorandum, the Chief, Personnel Division, opted not to provide an advisory opinion but instead stated that they were returning the applicant's request without action due to insufficient evidence and because too much time had lapsed since the alleged injustice.  In the memorandum, the Chief, Personnel Division, National Guard Bureau, submitted that the ABCMR could deny an untimely application or it could excuse untimely filing in the interest of justice.  The memorandum continued that the applicant did not provide State orders directing him to flood disaster relief for the time in question.  All state emergencies mandated by the Governor, through the Adjutant General, would be covered by SAD orders published by the Military Personnel Office (MILPO) of that state.  The published orders would cover those Soldiers identified to provide relief efforts in the event that the Soldier was injured and required medical care.

7.  The memorandum provided the Board by the Chief, Personnel Division, National Guard Bureau, was provided to the applicant for his information and possible rebuttal prior to consideration of his case for correction of military records.  The applicant responded on 27 December 2007.  In a hand-written letter which was sent to the Board by "fax" under a "fax" cover sheet, the applicant stated, "Here's a copy of the State orders activating me for disaster relief to the 1994 Albany GA floods."  A copy of the referred to orders were not attached to the letter; however, a copy of the following documents were:  a letter addressed to the applicant from his Member of Congress (MOC); a letter addressed to him from the Deputy Chief of Staff, Georgia Army National Guard, Joint Force Land Component, Joint Force Headquarters – Georgia, Ellenwood, Georgia, with enclosures, dated 28 November 2007; a copy of two pages from a document titled, "In the Appeal of [the applicant]"; and a letter, Subject:  Return Visit, prepared by the applicant's attending physician, dated 26 February 1996.

8.  The letter addressed to the applicant by the Deputy Chief of Staff, Georgia Army National Guard, Joint Force Land Component, Joint Force Headquarters – Georgia, stated, in pertinent part, that the duty he had performed in relation to the floods in 1994 was in a State Active Duty status, as evidenced by the W-2 he received from the Georgia Department of Defense.  The Deputy Chief of Staff indicated that this duty was paid by State funds and the W-2 indicated that the applicant was on this duty for 9 or 10 days.  Actual pay records were not available since the period of retaining State pay records was seven years.

9.  The letter addressed to the applicant by the Deputy Chief of Staff, Georgia Army National Guard, Joint Force Land Component, Joint Force Headquarters – Georgia, also advised him that the records indicated that he had attended drills in May, June, July, August, September, October and December 1994.  In 1995, the applicant had attended drills in January, February, and March.

10.  The document that was transmitted to the Board which were alleged to be SAD orders is a "Memorandum for All Unit Personnel, Subject:  June 1994 Newsletter" prepared by the Commander, 148th Medical Company (Air Ambulance), dated 7 June 1994.  A review of the memorandum fails to reveal the applicant's name and does not contain a mention of flood relief.  The applicant entered his name and service number at the lower edge of the memorandum in addition to entering the words, "Flood Relief."

11.  The W-2 Forms provided by the applicant show he had $420.30 in earning from the Georgia Department of Defense during tax year 1994.  He had $528.96 in earnings for tax year 1995.  These tax records are not structured to specifically show dates for which wages were paid the individual.  The forms are prepared and show the total of all wages earned by a taxpayer during the whole tax year.

12.  The MMPA (Master Military Pay Account) record which was provided to the Board shows that the applicant performed annual training [coded with numeral 50] for the period 14 through 28 May 1994.  The applicant performed drills [coded with the numeral 22] on (among other dates):  11 and 12 June, 18 and 19 July, and 6 and 7 August 1994.  The MMPA for 1995 shows the applicant only performed drills on 7 and 8 January, 4 and 5 February, and on 4 and 5 March 1995.  These reports show no other information to specifically identify how the time was spent or to what project a Soldier's efforts were committed.

13.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  Correction the NGB Form 22 is specifically within the purview of the Army National Guard of the respective State and as such, requests for correction of entries which are believed to be in error are to be directed to the attention of the State Adjutant General for consideration for correction.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant contends that he was ordered to active duty, and provided SAD orders in July 1994 and in July 1995, to support disaster relief operation related to the Albany, Georgia, flood.  The applicant provided no orders to show he was ordered to active duty in support of disaster relief efforts related to floods.

3.  An advisory opinion was sought in connection with this case and although no opinion was provided, the National Guard Bureau did provide a memorandum of input or support.  The memorandum of input or support was provided to the applicant for his information and to give him an opportunity to rebut the input.  The applicant responded and provided what he alleged to be the SAD orders; however, the document he provided was a copy of a "Memorandum for All Unit Personnel, Subject:  June 1994 Newsletter" prepared by the Commander, 148th Medical Company (Air Ambulance), dated 7 June 1994.  A review of the memorandum fails to reveal the applicant's name and the memorandum does not contain a mention of flood relief.

4.  The MMPA the applicant provided the Board show he performed drills and his annual training during the period 14 through 28 May 1994.  These dates preceded the floods that were reported to have occurred in July 1994 and therefore, this time could not have been devoted to the disaster relief efforts.

5. The W-2 forms provided the Board by the applicant for 1994 and 1995 shows his total earnings during these tax years.  These tax records do not show the specific dates for which he earned wages; therefore, they are of no value in establishing and verifying the dates during which he had earnings.

6.  It has been noted that correction the NGB Form 22 is specifically within the purview of the Army National Guard of the respective State and as such, requests for correction of entries which are believed to be in error are to be directed to the attention of the State Adjutant General for consideration for correction; however, based on the evidence, the applicant is not entitled to a correction of his records to show that he served with the GAARNG in support of the Albany, Georgia, floods in 1994.

BOARD VOTE:

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




      _______ _ 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
ABCMR Record of Proceedings (cont)                                         AR20070013662



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ABCMR Record of Proceedings (cont)                                         AR20070013662



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