IN THE CASE OF:	  

		BOARD DATE:	  18 February 2009

		DOCKET NUMBER:  AR20080009804 


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 to Item 12c (Net Active Service This Period) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to read an additional of 1 year, 1 month, and 24 days, for a total of 3 years, 10 months, and 5 days active service.  She also requests, in effect, that the spelling of her last name shown on the DD Form 214 include an "s" at the end.

2.  The applicant states, in effect, that her Chronological Statement of Retirement Points (AHRC Form 249-2-E), dated 1 June 2006, reflects the correct amount of her active duty and proper spelling of her last name.  She also states that correction to her active duty service and the reissue of a DD Form 214 is required in order for her to receive full entitlement of creditable service to be applied to her leave earnings and retirement computation as a federal government employee.

3.  In support of her application, the applicant provides copies of her DD Form 214 and Chronological Statement of Retirement Points. 

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 requested correction of the spelling of her last name on her DD Form 214 to include an "s" at the end.  On 31 December 2008, the applicant was issued a DD Form 215 (Correction to DD Form 214), correcting the spelling of her last name to include an "s" at the end.  Therefore, this issue will not be discussed further in this Record of Proceedings.

3.  The applicant's military records show she enlisted in the United States Army Reserve (USAR), in pay grade E-3, on 2 June 1977.  

4.  The applicant was ordered to active duty (AD) in support of Operation Noble Eagle with a reporting date of 8 October 2001, for a period not to exceed 365 days.  On 5 September 2002, the period of AD was extended not to exceed 730 days.  The applicant's records do not show she was issued a DD Form 214 for this period of AD.

5.  The applicant was again was ordered to AD for a period of 90 days, for the purpose of AD medical extension.  She entered AD on 8 October 2003.  

6.  The applicant was released from AD at the completion of her required active service on 18 June 2004 and transferred to the Retired Reserve.  She was issued a DD Form 214 that shows in Item 12a (Date Entered AD This Period) she entered active duty on 8 October 2003.  Item 12c (Net Active Service This Period) shows she was credited with 8 months and 11 days net active service.   Item 12d she was credited with 2 years total prior active service.

7.  The applicant submitted a copy of her AHRC Form 249-2-E, dated 1 June 2006, that shows she served in continuous enlisted service in the USAR from her Retirement Year (RY) beginning 2 June 1977 through the RY ending (RYE) 1 June 2005.  She was credited with 26 years and 17 days qualifying service for retirement as of her RYE ending 1 June 2005.  Her records also contain an APRC Form 249-2-E (same title), dated 31 December 2008, that reflects the same data.

8.  Both the 2006 and 2008 statements show she was credited with 236 active duty points from her RY 2 June 2001 to 1 June 2002, 364 points from 2 June 2002 to 1 June 2003, and 365 points from 2 June 2003 to 1 June 2004.

9.  The applicant's ARPC Form 249-2-E, dated 31 December 2008, also shows she served in continuous enlisted service in the USAR from RY 2 June 1977 through 1 June 2005.  

10.  Army Regulation 635-5, governs the preparation of the DD Form 214.  This regulation specifies that post-service benefits, final pay, and retirement credit, will be based on the information contained in Item 12 (Record of Service).  Item 12d will contain the total amount of prior active military service less lost time, if any, taken from previously-issued DD Forms 214.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 1 October 2001, the applicant was ordered to AD with a reporting date no later than 8 October 2001.  In September 2002, this period of AD was extended from 365 days to a period not to exceed 730 days.  There is no evidence that the applicant was provided a DD Form 214 for her AD beginning on 8 October 2001.  There is also no evidence when this period of active duty service ended and for what reason after it had been extended.  Orders were published showing she was ordered to AD on 8 October 2003 and released on 18 June 2004.  She was provided a DD Form 214 for the period 8 October 2003 to 18 June 2004 to support 8 months and 11 days active duty service.  

2.  The applicant's contentions that she served on AD for an additional 1 year, 1 month, and 24 days have been noted and found to have merit.  It appears that no DD Form 214 for her AD service from 8 October 2001 through 7 October 2003, a period of 1 year, 11 months, and 29 days, was prepared.  In addition, she was not given the proper credit for this period of service on her DD Form 214 with an ending date of 18 June 2004.  Therefore, based on the foregoing, the applicant is entitled to correction to her DD Form 214, Item 12a, to show she entered active duty on 8 October 2001.  She is also entitled to correction to Item 12c to show 2 years, 8 months, and 10 days, the combined total of her period of AD service from 8 October 2010 through 18 June 2004.  

3.  There is no evidence the applicant served on active duty for any other period other than the period from 8 October 2001 through 18 June 2004 for which she was issued a DD Form 214, and she has not shown otherwise.  In view of the circumstances in this case, the applicant is not entitled to correction to Items 12c to show that she completed 3 years, 10 months, and 5 days active service, and item 12d (Total Prior Active Service) should be amended to reflect "0000 00 00."

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  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 the Department of the Army records of the individual concerned be corrected by amending the applicant's DD Form 214, dated 18 June 2004:

     a.  in Item 12a to show she entered active duty on 8 October 2001;

     b.  in Item 12c to show a credit of 2 years, 8 months, and 10 days;

     c.  in Item 12c to show "0000 00 00"; and

     d.  by providing the applicant a corrected separation document.

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 correction of Items 12d of her DD Form 214 to show a credit of 3 years, 10 months, and 5 days.




      __________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)                                         AR20080009804



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ABCMR Record of Proceedings (cont)                                         AR20080009804


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