IN THE CASE OF:
BOARD DATE: 13 NOVEMBER 2008
DOCKET NUMBER: AR20080011726
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 a new DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was honorably discharged.
2. The applicant states he is applying to the Federal Bureau of Investigation (FBI) and he is unable to find any record of his discharge papers.
3. The applicant provides no additional evidence or official documentation in support of his application.
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 military personnel record shows he was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 15 May 1998. He was ordered to active duty, reporting date 22 February 1999, with an active duty commitment of 4 years.
3. A Chronological Statement of Retirement Points (ARPC Form 249-E) shows the applicant was released from active duty on 8 April 2005. The applicant's official military personnel file (OMPF) contained on the integrated Personnel Electronic Records Management System (iPERMS) does not contain a copy of a DD Form 214 for his period of active service.
4. On 13 October 2006, the applicant submitted his unqualified resignation as a Reserve Officer in the USAR.
5. On 20 October 2006, the applicant was honorably discharged from the USAR.
6. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. This regulation provides, in pertinent part, that a DD Form 214 will be issued at the time of separation from active duty to each member of the Reserve components ordered to active duty or for a period of 90 days or more.
7. Army Regulation 635-5 states that a DD Form 214 will not be issued to replace record copies or DD Forms 214 lost by Soldiers. This regulation further states that if no DD Form 214 is available, a statement of service or transcript of military record may be issued.
8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be issued a new DD Form 214 showing he was honorably discharged from the Army.
2. The applicant had been ordered to active duty with an active duty commitment of 4 years. Therefore, upon his release from active duty he would have been issued a DD Form 214 covering his period of active service.
3. Based on the presumption of regularity and in the absence of evidence to the contrary, it must be presumed that a DD Form 214 was in fact issued.
4. Army regulation specifically prohibits the reissuance of a DD Form 214 to replace record copies or DD Forms 214 lost by Soldiers.
5. 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) AR20080011726
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ABCMR Record of Proceedings (cont) AR20080011726
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