IN THE CASE OF:
BOARD DATE: 25 November 2008
DOCKET NUMBER: AR20080012268
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, that item 12a (Date Entered AD (active duty) This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 28 August 2004 be corrected to show he entered active duty on 3 November 2002.
2. The applicant states that an error occurred while he was outprocessing.
3. The applicant provides a memorandum, dated 19 June 2008; his DD Form 214 for the period ending 28 August 2004; deployment orders, dated 24 October 2002; active duty orders, dated 5 November 2003, with two amendments, one dated 2 February 2004 and one dated 18 June 2004; demobilization orders, dated 13 August 2004; and release from active duty orders, dated 20 August 2004 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. After having had prior service, the applicant enlisted in the U. S. Army Reserve (USAR) on 16 October 1997.
3. Effective 3 November 2002, the applicant was ordered to active duty with his unit for deployment in support of Operation Enduring Freedom for a period not to exceed 365 days. There are no orders in the integrated Personnel Management Records System (IPERMS) showing he was released from this active duty. There is no DD Form 214 in IPERMS for this period of active duty.
4. Effective on or about 3 November 2003, the applicant was ordered to active duty for the purpose of active duty medical extension.
5. On 28 August 2004, the applicant was released from active duty. Item 12a of his DD Form 214 for the period ending 28 August 2004 shows he entered active duty this period on 3 November 2003. Item 12c (Net Active Service This Period) shows he completed 9 months and 26 days of active service. Item 18 (Remarks) of this DD Form 214 shows he served in Kuwait from 9 November 2002 through 15 December 2002.
6. Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. In pertinent part, it states the DD Form 214 is a synopsis of the Soldiers most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant was initially ordered to active duty effective 3 November 2002 for a period not to exceed 365 days. He was again ordered to active duty at the end of that 365-day period, on or about 3 November 2003. When the applicant was released from active duty on 26 August 2004 at the end of the second period of active duty, item 12a of his DD Form 214 was completed to show he entered active duty on 3 November 2003.
2. There is no evidence of record to show the applicant received a DD Form 214 for his period of active duty from 3 November 2002 through 2 November 2003. However, since item 18 of his DD Form 214 for the period ending 28 August 2004 contains information (i.e., his service in Kuwait) that was performed during the period of active duty beginning 3 November 2002, it appears that item 12a of his DD Form 214 for the period ending 28 August 2004 actually should have read 3 November 2002 and not 3 November 2003.
3. Therefore, Item 12a of the applicant's DD Form 214 for the period ending
28 August 2004 should be corrected to show he entered active duty on
3 November 2002, and item 12c of this DD Form 214 should be corrected to show he completed 1 year, 9 months, and 26 days of net active service.
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:
a. amending item 12a of his DD Form 214 for the period ending 28 August 2004 to show he entered active duty on 3 November 2002; and
b. amending item 12c of his DD Form 214 for the period ending 28 August 2004 to show he completed 1 year, 9 months, and 26 days of net active service.
_______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.
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