IN THE CASE OF:	  

		BOARD DATE:	        07 APRIL 2009

		DOCKET NUMBER:  AR20080013578 


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 her military records be corrected to show that she served in the U.S. Army Reserve (USAR) from 7 January 1988 to 6 January 1996 and that she served 180 days of active duty. 

2.  The applicant states that she entered the USAR, then entered active duty for training (ADT), was released from ADT and reverted back to the USAR, then transferred to the Individual Ready Reserve (IRR) in 1990.  She also states that she is trying to return to school and use the Texas Hazelwood Act to help pay for school, but was informed that she needed her expiration of term of service from the military and evidence that she completed 180 days of active duty service. 

3.  The applicant provides an undated self-authored letter; four copies of her 
DD Form 214 (Certificate of Release or Discharge from Active Duty); an undated letter from the Chief of the Chemical Corps; a Disposition Form (DF), subject: Mobilization Information Briefing 2122nd USAG,  dated 13 December 1987; a Certification of Completion, dated 4 February 1988, showing that she completed training with a Fitness Training Company (FTC) prior to entering basic training; a Certificate of Training showing she completed basic training on 30 March 1988; a Certificate of Achievement, dated 30 March 1988; a Certificate of Training, dated 23 April 1988, showing that she completed Family Advocacy Program Education Awareness Training; a certificate showing that she completed toxic agent training on 12 May 1988; a DF, subject: TY 89 Drill Dates, dated 24 May 1988; a Letter of Commendation, dated 22 June 1988; a diploma, dated 29 June 1988, showing 

that she completed the Chemical Operations Specialist Course; a 29 June 1988 document showing that she was an affiliate member of the U.S. Army Chemical Corps Regiment; two unidentifiable training documents; a DF, subject: Alert Notification Roster, dated 25 September 1988; a letter, dated 23 May 1990, from the USAR Personnel Center in St. Louis, Missouri; a Military Pay Voucher paying her for being ordered to an IRR screen on 7 August 1990; her Chronological Statement of Retirement Points, dated 9 August 1990; an envelope, postmarked 9 February 1995; the first two pages of a memorandum from the USAR Personnel Center, with two pages of telephone numbers for various offices within that command; and a letter, dated 31 January 2003, from the National Personnel Records Center in St. Louis, Missouri in support of this 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 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 that she enlisted in the USAR on 
7 January 1988 for a period of 8 years.  She entered ADT on 28 January 1988 and completed training with an FTC.  She then completed basic and advanced training and was awarded military occupational specialty (MOS) 54B (Chemical Operations Specialist).  She was then released from ADT on 29 June 1988 after completing 5 months and 2 days of creditable active service and reverted back to the 340th Chemical Company in Houston, Texas.  She was reassigned to the 420th Chemical Detachment, Baltimore, Maryland effective 24 September 1988.  

3.  Although the exact date of the applicant's transfer to the IRR is not available, she provided a letter, dated 23 May 1990, from the USAR Personnel Center which shows that she was welcomed to the IRR on that date.




4.  Information in the Total Army Personnel Database – Reserve (TAPDB-R) shows that she was discharged from the IRR on 6 January 1996 at the end of her 8-year enlistment in the USAR, but there are no orders in her military records discharging her on that date.

5.  The applicant's military records contain a letter, dated 8 December 1994, from the Department of Veterans Affairs (DVA), which was provided to the applicant to assist her in applying for benefits under the Texas Education Code, known as the Hazelwood Act.  This letter informed the applicant that she was not entitled to Selective Reserve (Chapter 106) or Montgomery GI Bill (Chapter 30) educational benefits, and therefore was also not entitled to educational assistance under the laws administered by the DVA.

6.  The Texas Education Code applies to all educational institutions supported in whole or in part by state tax funds unless specifically excluded by this code.  Chapter 54 (Tuition and Fees), Subchapter B (Exemptions from Tuition), Section 543.203 (Veterans, Dependents, etc.), is commonly referred to as the Hazelwood Act.  The purpose of the Hazelwood Act is to provide an education benefit to honorably discharged or separated Texas veterans (Texas residents at the time they entered the U.S. Armed Forces) who are no longer entitled to educational benefits under the Department of Veterans Affairs (VA) and are not eligible for any other federal financial aid.  The Hazelwood Act waives tuition and fees for the Texas Veteran at a State-supported college or university, thereby allowing him/her to complete his/her education at a relatively low cost.  Under the Hazelwood Act, a Texas Veteran is one who served 180 days of consecutive active duty, excluding active duty for training;  whose DD Form 214 shows Texas as his/her home of record; and who received an honorable discharge.

7.  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.  This 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 that her military records should be corrected to show that she served in the USAR from 7 January 1988 to 6 January 1996, and that she served 180 days of active duty.



2.  The evidence of record shows that the applicant served in the USAR from 
7 January 1988 to 6 January 1996.  As there is no evidence that orders discharged her from the USAR on 6 January 1996, it would be appropriate at this time to correct her military records by issuing orders honorably discharging her from the USAR on 6 January 1996.  This, along with her enlistment contract into the USAR on 7 January 1988, should sufficiently establish that she served in the USAR from 7 January 1988 to 6 January 1996.

3.  While the applicant wishes to have her military records show that she completed 180 days of active duty, the evidence of record only shows that she completed 5 months and 2 days, or 152 days, of active duty from 28 January 1988 to 29 June 1988.  As a result, there is an insufficient basis for correcting her military records to show that she completed 180 days of active duty.  The applicant is also advised that even if she had completed an additional month or two of active duty, she still would not be eligible for education benefits under the Hazelwood Act, as her active duty service from 28 January 1988 to 29 June 1988 was for training, which is not creditable toward the minimum 180 days of active duty service in the Armed Forces of the United States to qualify for benefits under the Hazelwood Act.

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 Department of the Army records of the individual concerned be corrected by issuing orders honorably discharging her from the USAR on 6 January 1996.

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 showing that she completed 180 or more days of active duty service.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be proud of her service in arms.



      ________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)                                         AR20080013578



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ABCMR Record of Proceedings (cont)                                         AR20080013578



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