IN THE CASE OF:	  

		BOARD DATE:	  	  18 December 2008

		DOCKET NUMBER:  AR20080014301 


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, a DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period of active duty service from 1 January to 20 April 1953 in lieu of the NGB Form 22 (Report of Separation and Record of Service in the Army National Guard of Kansas) that he received.

2.  The applicant states, in effect, he is again requesting correction of his military records to document his 108 consecutive days of active duty for training (ADT) from 1 January 1953 to 20 April 1953.  He states that the application he submitted to the Department of Veterans’ Affairs (VA) Healthcare System was denied because he could not produce a DD Form 214, which was never issued to him.  He adds that a DD Form 214 should be issued to document the above period of service in lieu of the NGB Form 22 that he received. 

3.  The applicant provides a self-authored statement, dated 12 August 2008; copies of a DA AGO Form 145 (Application for Enrollment), dated 19 November 1953; State of Kansas, Adjutant General’s Department, Topeka (Kansas), letter, dated 8 December 1952, subject:  Discharge to Reenlist in Order to Attend a Service School; State of Kansas, The Adjutant General’s Office, Topeka (Kansas), Special Orders Number 343, dated 8 December 1952; Headquarters, Technical Training Division, Ordnance Automotive School, Adjutant General Depot, U.S. Army, Atlanta, Georgia, memo, dated 23 March 1953; 2 NGB Forms 22, with effective dates of 17 December 1955 and 17 December 1952; 1 page of a Service Record; DARP Form 249-2-E (Chronological Statement of Retirement Points), dated 13 January 1991; Standard Form (SF) 180 (Request Pertaining to Military Records), dated 18 February 1999; Headquarters, Department of the Army, Review Boards Agency, Support Division, St. Louis, St. Louis, Missouri, letter, dated 28 February 2001; applicant’s letter, dated 23 January 2001, subject:  DD Form 149; applicant’s letter, dated 27 September 1999, subject:  VA Healthcare System (Denial); National Personnel Records Center, Military Personnel Records, St. Louis, Missouri, letter, dated 7 August 2008; DARP Form 249 (Chronological Statement of Retirement Points), dated 12 November 1993; and the applicant’s letter, dated 12 August 2006, subject:  Help with Obtaining a Military DD Form 214.

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 personnel records show that he enlisted in the Army National Guard of the United States (ARNGUS) on 26 August 1951 and enlisted in the Army National Guard of Kansas (KSARNG) on 18 December 1952.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 13E (Fire Direction Coordinator).  The applicant continued to serve in the ARNGUS and KSARNG, attained the rank of sergeant first class (SFC)/pay grade E-6, and was honorably discharged on
1 September 1959.

3.  The applicant enlisted and reentered the ARNGUS and KSARNG on 7 August 1972 in the rank of staff sergeant (SSG)/pay grade E-6.  He attained the rank of master sergeant (MSG)/pay grade E-8 and he was awarded MOS 13Y (Cannon/Missile Senior Sergeant).  On 1 November 1982, he was honorably discharged and assigned to the U.S. Army Reserve (USAR) (Individual Ready Reserve), Reserve Component Personnel and Administration Center, St. Louis, Missouri.  The applicant was honorably discharged from the USAR, effective 
29 October 1991, and he was placed on the Retired list in the rank of first sergeant (1SG)/pay grade E-8 on 13 July 1994.

4.  The applicant's military personnel records contain a NGB Form 22 that shows he enlisted on 18 December 1952 and he was honorably discharged on
17 December 1955.  Item 31 (Service Schools Attended and Dates) shows he attended the Ordnance Automotive School, Wheel Vehicle Repair Course in Atlanta, Georgia from 5 January to 17 April 1953.

5.  There are no orders in the applicant’s military personnel records that show he was ordered to active duty or ordered to active duty for training in 1953.

6.  There is no evidence in the applicant's military personnel records that shows he was issued a DD Form 214 for active duty service from 5 January to 17 April 1953.

7.  In support of his application, the applicant provides the following documents:

     a.  A self-authored statement, dated 12 August 2008, that was previously summarized and incorporated in the applicant's statement and request.

     b.  DA AGO Form 145, dated 19 November 1953, that, in pertinent part, shows the applicant attended a Mechanics Course at the Ordnance School, Atlanta, Georgia from 1 January to 18 April 1953.

     c.  State of Kansas, Adjutant General’s Department, Topeka (Kansas), letter, dated 8 December 1952, subject:  Discharge to Reenlist in Order to Attend a Service School, that shows, in pertinent part, the applicant was scheduled to attend a service school (reporting 5 January 1953 and closing on or about
17 April 1953) and, as a result, he had to reenlist for a period of 3 years in order to attend the service school.

     d.  State of Kansas, The Adjutant General’s Office, Topeka (Kansas), Special Orders Number 343, dated 8 December 1952, that shows, by authority of the Secretary of the Army, the applicant was ordered to proceed from his home, on or about 2 January 1953, to the Ordnance Automotive School, Atlanta, Georgia, to attend the Wheel Vehicle Repair Course, reporting on 5 January 1953 and closing on or about 17 April 1953.  These orders also show the applicant was assigned to Battery D, 135th Antiaircraft Artillery Air Warfare Battalion, KSARNG, and that upon completion of the course, or unless sooner relieved by proper authority, he was to return to his home station.

     e.  Headquarters, Technical Training Division, Ordnance Automotive School, Adjutant General Depot, U.S. Army, Atlanta, Georgia, memo, dated 23 March 1953, that shows the applicant was attending the Wheel Vehicle Repair course at the Ordnance Automotive School and scheduled to graduate on 17 April 1953.
     f.  NGB Form 22, with an effective date of 17 December 1955, that was previously introduced and considered in this Record of Proceedings.

     g.  NGB Form 22, with an effective date of 17 December 1952.  Item 32 (Reason and Authority for Discharge) shows the applicant was discharged for the purpose of reenlisting in order to attend a service school per National Guard Regulation 25, paragraph 73a, and The Adjutant General’s Office, Special Orders Number 348, paragraph 1, dated 13 December 1952.

     h.  Page 2 of a Service Record showing in Section 11 (Retirement Credits), in pertinent part in the Active Federal Service column, 100 points for service from
2 January through 20 April 1953.

     i.  DARP Form 249-2-E, dated 13 January 1991, that shows, in pertinent part, a Retirement Year line entry documenting the applicant’s service from 26 August 1952 through 25 August 1953 and 133 active duty points. 

     j.  Headquarters, Department of the Army, Review Boards Agency, Support Division, St. Louis, St. Louis, Missouri, letter, dated 28 February 2001, that shows the applicant was informed the Board requested his military records from the records custodian without success, his application could not be acted upon without further documentation, and his application was closed without action.

     k.  Applicant’s letter to the Army Board for Correction of Military Records, dated 23 January 2001, subject:  DD Form 149, that shows he previously presented his case to this Board requesting a DD Form 214.

     l.  Applicant’s letter to the VA, Medical Administration Services, Regional Office Center, Wichita, Kansas, dated 27 September 1999, subject:  VA Healthcare System (Denial), that shows the applicant requested reconsideration of the denial of his eligibility for the VA Healthcare System and he provides a summary of his efforts to obtain a DD Form 214 for his service during the period 2 January to 19 April 1953.

     m.  National Personnel Records Center, Military Personnel Records,
St. Louis, Missouri, letter, dated 7 August 2008, that shows the applicant was informed a DD Form 214 was not issued because he had no active service, or less than 90 consecutive days of active duty for training, and that they had no authority to review and approve amendments or corrections to military records.

     n.  DARP Form 249, dated 12 November 1993, that shows, in pertinent part, a Retirement Year line entry documenting the applicant’s service from 26 August 1952 through 25 August 1953 and 133 active duty points.
8.  Special Regulations Number 615-360-1 (Discharge Procedures and Preparation of Separation Forms), in effect at the time of the period of service under review, prescribed the discharge procedures and separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 217A (Certificate of Service) and DD Form 214.  Section IV (Separation Certificate and Report of Separation from Armed Forces of the United States), paragraph 10 (Description) states, in pertinent part, “DD Form 217A (Certificate of Service) is furnished enlisted personnel relieved from active duty and transferred to the Enlisted Reserve Corps under Army Regulation 615-362, Army Regulation 615-365, or Special Regulations 615-363-5, and those transferred to the temporary disability retired list under Army Regulation 600-450.”  It also states the DD Form 214 is furnished each enlisted person separated from the Army.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 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, in effect, that he should be issued a DD Form 214 to show his active duty service from 2 January to 20 April 1953.

2.  The evidence of record shows that the applicant was ordered to proceed from his home, on or about 2 January 1953, to the Ordnance Automotive School, Atlanta, Georgia, to attend the Wheel Vehicle Repair Course, reporting 5 January 1953 and closing on or about 17 April 1953.  The evidence of record also shows that, upon completion of the course, the applicant was to return to his unit in the KSARNG.  In addition, the preponderance of evidence supports the applicant’s claim that he attended and completed this training at the service school.  Thus, the applicant’s contention that he attended and completed the Wheel Vehicle Repair Course during the period 5 January to 17 April 1953 is not at issue.

3.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  Thus, the presumption is that the applicant was properly processed and transferred to his ARNG unit in accordance with the regulations in effect at that time.
Therefore, he is not entitled to correction of his records in this case. 
4.  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 this requirement.  

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  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 our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   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)                                         AR20080014301



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ABCMR Record of Proceedings (cont)                                         AR20080014301



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