IN THE CASE OF:
BOARD DATE: 13 NOVEMBER 2008
DOCKET NUMBER: AR20080008676
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 that his release from active duty date on his
DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 17 May 1991 be changed to 12 May 1997.
2. The applicant states he was on active duty up until 1997 when he got hurt.
3. The applicant provides, in support of his application, copies of his DD
Form 214, an Individual Sick Slip, his Medical Evaluation Board (MEBD) Proceedings, his Physical Evaluation Board (PEB) Proceedings, a letter and a set of orders from the U.S. Total Army Personnel Command (now known as Human Resources Command [HRC]), and two pages from a Department of Veterans Affairs (VA) letter.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's official military personnel file entered on the integrated Personnel Electronic Records Management System (iPERMS) was limited. However, there were sufficient documents for the Board to conduct a fair and impartial review of this case.
3. The applicant's NGB Form 22 (Departments of the Army and the Air Force, National Guard Bureau [NGB], Report of Separation and Record of Service) shows he enlisted in the Georgia Army National Guard (GAARNG) on 12 March 1984. At the time of his enlistment he had 3 years, 11 months, and 29 days of prior active federal service, and 8 months and 12 days of prior Reserve component service.
4. The applicant's DD Form 214 shows he was ordered to active duty from his GAARNG status in support of Operation Desert Shield/Desert Storm. He entered this period of active duty on 8 January 1991. There are no orders available concerning this period of active service.
5. On 17 May 1991, the applicant was released from active duty by reason of having completed his term of service. He was transferred to the control of Headquarters, STARC [State Area Regional Command] GAARNG in Atlanta, GA. Item 12b (Separation Date This Period) of his DD Form 214 contains the entry "91 05 17" (1991 May 17).
6. An Individual Sick Slip, dated 7 November 1996, issued by his GAARNG unit, referred him to an MEBD for probable permanent orthopedic disabling conditions.
7. An MEBD, dated 26 February 1997, referred the applicant to a PEB. In the Narrative Summary for the MEBD, the examiner stated the applicant injured his back while on his annual training.
8. An informal PEB found the applicant physically unfit and recommended the applicant be separated with severance pay if otherwise qualified with a combined disability rating of 20 percent.
9. On 12 May 1997, the applicant was discharged from the Georgia Army National Guard and the U.S. Army Reserve with severance pay and a disability rating of 20 percent.
10. The available records do not contain any orders ordering the applicant to active duty subsequent to 17 May 1991.
11. The two pages from a VA letter, dated 24 February 2003, submitted by the applicant, appear to be a portion of a VA rating decision concerning the applicant's claim for an increase in his disability rating from that agency. These pages provide no evidence of the applicant having been on active duty since
17 May 1991.
12. Army Regulation 635-5 (Separation Documents), then in effect, establishes the standardized policy for preparing and distributing the DD Form 214. This regulation states, in pertinent part, that a DD Form 214 will be issued at the time of separation to each member of the Regular Army and each member of the Reserve components and the Army of the United States (AUS) without component, called or ordered to active duty or active duty for training (ACDUTRA) for a period of 90 days or more.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the separation date on his DD Form 214 should be 12 May 1997 because he was on active duty up until 1997.
2. In the Narrative Summary to the applicant's MEBD, the examiner stated the applicant was injured while attending annual training. This statement indicates the applicant had not been on continuous active duty since 17 May 1991.
3. There are no orders in the available records showing the applicant was ordered to active duty subsequent to 17 May 1991. Therefore, the date of separation, 17 May 1991, in Item 12b of the applicant's DD Form 214 is determined to be correct.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.
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.
__________XXX____________
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) AR20080008676
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20080008676
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