IN THE CASE OF:	

		BOARD DATE:	  28 OCTOBER 2008

		DOCKET NUMBER:  AR20080011420


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, corrections to his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 17 March 1997, to show in Item 7b (Home of Record [HOR] at Time of Entry), his correct HOR as Grand Prairie, Texas; Item 11 (Primary Specialty), the military occupational specialty (MOS) 88H, Cargo Handler; and Item 12d (Total Prior Active Service) and Item 12e (Total Prior Inactive Service), his Army Delayed Entry Program (DEP) and Texas Army National Guard (TXARNG) service time.

2.  The applicant states, in effect, that he enlisted out of Grand Prairie, Texas, into the Army DEP Program sometime in February and his future wife’s address was placed in his records somewhere along that time frame.  He further states, in effect, that when he reenlisted for his second term he was reclassified in the new MOS 88H, Cargo Handler.

3.  In support of his application, the applicant provides copies of his DA Form 3286-63 (Statement for Enlistment U.S. Army Training Enlistment Program), his Certificate of Enlistment, his U.S. Army Armor School diplomas, his U.S. Army Transportation School diploma, and his TXARNG discharge orders.

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 military records show he enlisted in the Army DEP on 2 February 1993.  He enlisted in the Regular Army in pay grade E-1 on 19 March 1993 for 3 years.

3.  The applicant submitted a copy of his Certificate of Enlistment for service in the U.S. Army dated 2 February 1993.

4.  The applicant’s enlistment contract is unavailable for review to show his HOR at the time of his enlistment in 1993.  The DA Form 3286-63, dated 19 March 1993, also submitted by the applicant does not show his HOR.

5.  The applicant further submitted copies of his completion diplomas for the M1 Abrams Tank Systems Mechanic Course, dated 15 September 1993; the M1 Abrams Tank Systems Recovery Specialist Course, dated 13 October 1993; and the Cargo Specialist Course, dated 20 February 1996.

6.  The applicant’s records show he was awarded and served in MOS 88H, Cargo Specialist, for 1 year and 1 month; and MOS 63E, Tank Systems Mechanic, for 3 years and 6 months.

7.  The applicant was released from active duty on 6 September 1995 for the purpose of immediate reenlistment.  He reenlisted on 7 September 1995 for 4 years.  His reenlistment document shows his HOR as Ozark, Arkansas.

8.  The applicant was released from active duty in pay grade E-4 on 17 March 1997 and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  He was credited with 3 years, 11 months, and 29 days net active service during this period.  Item 7 of his DD Form 214, shows his HOR as Ozark, Arkansas.  Item 11 shows the MOS 88H, Cargo Specialist, and 63E, Tank Systems Mechanic.  Items 12d and 12e show zero credit for total prior active service and total prior inactive service.  Item 18 (Remarks) shows DEP service from 2 February 1993 to 18 March 1993.

9.  The applicant was released from the USAR for the purpose of enlistment in the TXARNG.  He enlisted in the TXARNG in pay grade E-4 on 29 June 2000 for 2 years.  His enlistment contract shows his HOR as Houston, Texas.

10.  The applicant was separated from the TXARNG on 17 July 2000 and was issued a NGB Form 22 (Report of Separation and Record of Service).  He was credited with 19 days of net service this period.  He was also credited with 3 years, 3 months, and 11 days of prior Reserve Components Service and 3 years, 11 months, and 29 days of prior active federal service.

11.  Item 13 (Primary Specialty Number, Title, and Date Awarded), of the applicant’s NGB Form 22 shows 88H, Cargo Specialist, 1 year and 1 month; and 63A, M1 Tank Systems Mechanic, 3 years and 6 months.  Item 19 (Mailing Address After Separation) contains no entry.  There is no required item on the NGB Form 22 to list an HOR.

12.  The applicant also submitted a copy of his TXARNG separation orders, dated 1 December 2001, that show his HOR as Houston, Texas.

13.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  This regulation specifies that Item 7 will list the HOR at the time of entry.  A Soldier’s initial enlistment contract is the source for this data or any approved change by the Enlisted Records and Evaluation Command.  This cannot be changed unless there is a break in service of at least one full day (Joint Travel Regulation, Volume 1, Appendix A, Part I).  The HOR is not always the same as the legal domicile as defined for income tax purposes.  Legal domicile may change during a Soldier’s career.

14.  The Joint Travel Regulations defines an individual's HOR as the place recorded as the home of the individual when commissioned, appointed, enlisted, inducted, or ordered into a tour of active duty.  The Joint Travel Regulations serve as the authority for correcting an HOR that was erroneously entered at the time of entry on active duty.  It states, in pertinent part, that a correction must be based on evidence that a bona fide error was made at the time of entry into the relevant period of service.  It must not be a place selected for the convenience of the Soldier.

15.  Army Regulation 635-5 also specifies that Item 11 will list the title of all MOS or Area of Concentration (AOC) for at least one year and include for each MOS/AOC the number of years and months of service.  Basic training and advanced individual training will not be counted.
16.  Army Regulation 635-5 further specifies that Item 12d will include the total amount of prior active military service, less lost time, for a previously issued DD Form 214.  Item 12e will include the total amount of prior inactive military service, less lost time, for a previously issued DD Form 214.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in this block.  Inclusive period of time in DEP will be entered in Item 18 of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his HOR is incorrect on his DD Form 214, but this cannot be confirmed nor denied.  There is no evidence to show that an error was made in the identification of his HOR at the time of his enlistment in 1993 or reenlistment in 1995.  There is no basis to correct his records as requested.  He is, therefore, not entitled to correction of item 7b of his DD Form 214 dated 17 March 1997.

2.  The applicant also contends that the MOS 88H is not shown on his DD Form 214, dated 17 March 1997.  The evidence shows the MOS 88H, Cargo Specialist, is properly shown in Item 11 of his DD Form 214.  There is no basis to correct Item 11 as requested.  He is, therefore, not entitled to a correction of Item 11 of his DD Form 214.  It is also noted that this MOS is also properly shown on his NGB Form 22.

3.  The applicant further contends that his service in the DEP and ARNG is not shown on his DD Form 214 dated 17 March 1997.  The evidence of record shows he served in the Army DEP from 2 February 1993 through 18 March 1993. In accordance with regulatory guidance, the period of time he served in the DEP was not creditable service.  His period of service in the TXARNG was subsequent to the issuance of his DD Form 214.  There is no evidence that the applicant served on active duty and in the ARNG prior to his enlistment in 1993.  He is, therefore, also not entitled to a correction of Items 12d and 12e of his DD Form 214.

4.  Neither the evidence submitted with the application nor the evidence of record supports his request or that his DD Form 214 is in error or unjust.  Each application is reviewed to determine if, by a preponderance of the evidence, an error or injustice exists and if so, if relief is appropriate.


5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080011420



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ABCMR Record of Proceedings (cont)                                         AR20080011420



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