IN THE CASE OF:	  

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080008678 


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, correction of his 28 April 1988 separation document (DD form 214) as amended by a separation document correction 
(DD Form 215), dated 5 June 1989.   

2.  The applicant states, in effect, Item 12b (Separation Date This Period) should be corrected to read "88  11  11" (11 November 1988) to reflect his incapacitation with pay status and Item 12c (Net Active Service This Period) should be corrected to read "88 10 19" (sic).  He states he was improperly released by his unit to the Individual Ready Reserve (IRR) on 20 March 1989, while he was still incapacitated.  He claims the Army lost his records in 1994, and refuses to help him in this matter.  He claims he has been trying to get these 179 days of active duty service added to his record for the past 19 years.    

3.  The applicant provides the following documents in support of his application: United States Army Human Resources Command, St. Louis, Missouri 
(HRC-St. Louis) Transition and Separations Branch Letter, dated 12 February 2008; Electronic Mail (e-mail) Message, dated 25 January 2008; United States Army Reserve Personnel Center (ARPERCEN), St. Louis, Missouri, Letter, dated 17 August 1994; DD Form 214; DD Form 215; Active Duty Training Orders, dated 22 December 1987; Office of the Secretary of the Army, Congressional Coordinator Response to Congressional Inquiry, dated 24 October 1994; Sixth Army Inspector General Letter, dated 9 December 1988; IRR Orders, dated 
20 March 1989; Retired List Orders, dated 5 December 2006.  


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.  The applicant's record shows that he served, in both an enlisted and officer status, in the United States Marine Corps (USMC) and United States Marine Corps Reserve (USMCR) from 14 July 1966 through 9 February 1977, and was appointed a first lieutenant (1LT) in the Army National Guard (ARNG) on 
10 February 1977.  He served in the ARNG until 7 February 1985, at which time he was honorably separated from the ARNG, in the rank of captain, and transferred to the United States Army Reserve (USAR).

3.  On 22 December 1987, Headquarters, 311th Support Command (Corps), Los Angeles, California, Orders 044-002 ordered the applicant to active duty training (ADT) for a period of 140 days, for duty with the 420th Transportation Center, Los Angeles, for the purpose of planning and preparation for Exercise Team Sprit 88.  

4.  The applicant's record contains a Reserve Personnel Accounting System (RPAS), Retirement Points Summary, which confirms he accrued a total of 
4396 retirement points and completed a total of 20 years, 8 months, and 12 days of qualifying service for retirement.  His record is void of any medical records indicating that he suffered from a disabling medical condition while on active duty that would have supported his disability separation processing through medical channels.  

5.  The applicant's record contains a separation document (DD Form 214) with a correction (DD Form 215) to this DD Form 214, dated 5 June 1989, which show he served on active duty for 4 months and 18 days from 23 December 1987 through 10 May 1988, at which time he was honorably released from active duty (REFRAD) at the completion of his required period of ADT.  His record is void of a separation packet containing facts and circumstances surrounding his REFRAD processing.  

6.  United States Army Human Resources Command, St. Louis, Missouri 
(HRC-St. Louis) Orders P12-692398, dated 5 December 2006, directed the applicant's retirement and placement on the Retired List, in the rank of MAJ, on 30 January 2007.  His record is void of any documentation regarding his disability or incapacitation status.  

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214 and for issuing DD Forms 215.  Chapter 2 contains preparation instructions for the 
DD Form 214.  The instructions for completing Item 12b state, in pertinent part, to enter the Soldier's transition date.  The instructions for Item 12c state, in pertinent part, to enter the amount of service this period, which is computed by subtracting Item 12a (Date Entered Active Duty This Period).  There are no provisions for correcting or altering a DD Form 214 to add active duty service credit for service not actually performed on active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Item 12b and Item 12c of his 1988 
DD Form 214 and/or DD Form 215 should be corrected to show he remained on active duty through 11 November 1988, and to credit him with this additional active duty service was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record includes a properly constituted DD Form 214, as amended by a DD Form 215 issued on 5 June 1989, which shows the applicant served on active duty for 4 months and 18 days, from 23 December 1987 through 10 May 1988, and these separation documents carry with them a presumption of regularity in the separation process.  

3.  Notwithstanding the assertions of the applicant, his record is void of any indication that he suffered from a medically disqualifying condition at the time of his 10 May 1988 REFRAD that would have warranted his disability separation processing through medical channels.  Further, it is clear he was REFRAD at the completion of his required ADT.  By regulation, the DD Form 214/215 will document active duty service completed.  There are no regulatory provisions that allow for documenting active duty service not actually performed on these separation documents.  Therefore, absent any evidence showing any error or injustice related to the date of the applicant's REFRAD, there is an insufficient evidentiary basis to grant the requested relief. 


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 this 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.




      _______ _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)                                         AR20080008678



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ABCMR Record of Proceedings (cont)                                         AR20080008678


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