IN THE CASE OF:
BOARD DATE: 9 SEPTEMBER 2009
DOCKET NUMBER: AR20080011564
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 the issuance of an order retroactively effective 12 November 2004 reassigning him from active duty in the status of a recalled retiree to the fully retired status and with the proper spelling of his name.
2. The applicant states that during October 2004, he was recalled from retirement to active duty for mobilization. However, shortly after entering active duty, he was released after only 17 days for medical reasons. The mobilization order he was issued by the U.S. Army Human Resources Command (USAHRC) has a routine provision that he would return to retired status. However, upon demobilization, the Training Center at Fort Jackson, SC, published an order that not only contained his incorrect last name, but also reassigned him to the U.S. Army Reserve (USAR) Control Group (Reinforcement) instead of the Retired List. He has attempted to resolve the issue with USAHRC over the years with no luck.
3. The applicant provides a copy of the USAHRC letter, dated 19 December 2005; Orders 310-175, issued by Headquarters, U.S. Army Training Center, Fort Jackson, SC, dated 5 November 2004; a copy of a DA Form 220 (Active Duty Report), dated 11 November 2004; and a copy of Orders M-09-405872, issued by USAHRC, dated 30 September 2004, in support of his 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 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 records show he was born on 7 September 1943 and, having had prior enlisted service, his records also show he was appointed as a commissioned officer in the USAR and executed an oath of office on 5 March 1976. He served in various command and staff positions within the USAR and was promoted to lieutenant colonel (LTC).
3. On 12 June 2003, and in anticipation of his upcoming 60th birthday, the applicant submitted an application for retired pay benefits to begin on 7 September 2003.
4. On 8 August 2003, the U.S. Army Reserve Personnel Command (now known as USAHRC - St. Louis), published Orders P08-386748 directing the applicant's retirement and placement on the Retired List of the Army of the United States (AUS) in his retired grade of LTC effective 8 September 2003.
5. On 30 September 2004, USAHRC published Orders M-09-405672 ordering the applicant to active duty in a retired status in support of Operation Enduring Freedom for a period of 365 days beginning on 26 October 2004 and terminating on 25 October 2005. He was assigned to McGrady Training Site, Fort Jackson, SC.
6. On 5 November 2004, Headquarters, U.S. Army Training Center, Fort Jackson, SC, published Orders 310-175 directing the applicant's release from active duty (REFRAD) for medical reasons and reassignment to the USAR Control Group (Reinforcement) effective 4 November 2007. Additionally, the orders incorrectly listed the applicant's name as "V___, N____ D."
7. On 19 December 2005, USAHRC notified the applicant by letter that his personnel and pay records were adjusted to add 17 days of active duty for the purpose of retirement. The letter also notified him that when he completed his 17 days of active duty, he should have been returned to the AUS Retired List and not transferred to the Individual Ready Reserve.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he should be issued an order retroactively reassigning him from active duty in the status of a recalled retiree to the fully retired status and with the proper spelling of his name.
2. The evidence of record shows that the applicant was mobilized and entered active duty as a recalled retiree on 25 October 2004. However, he was REFRAD some 17 days later for medical reasons. The orders issuing authority released him from active duty on 4 November 2007 but incorrectly spelled his full name and erroneously reassigned him to the USAR Control Group (Reinforcement). Therefore, the applicant's REFRAD orders should be amended to show the correct spelling of his name as to show he was returned to the AUS Retired List.
BOARD VOTE:
____X____ ____X____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Orders 310-175, dated 5 November 2004, by deleting the current name shown on the order, adding the correct spelling of his full name as "V____ N____, D____ K.," deleting the entry "USAR Control Group (Reinforcement)" from the "Assigned to" line and adding instead the entry "AUS Retired List."
___________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) AR20080011564
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ABCMR Record of Proceedings (cont) AR20080011564
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