IN THE CASE OF:	  

		BOARD DATE:	        17 MARCH 2009

		DOCKET NUMBER:  AR20080014401 


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 12d (Total Prior Active Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period from 8 November 1979 to 28 August 1992, which will simply be referred to as his DD Form 214 throughout the remainder of these proceedings, be changed to show that he had 4 years of total prior active service.  

2.  The applicant states that item 12d of his DD Form 214 shows that he had 3 years of prior active service, but that it does not reflect the 1 year he served with the 5503rd U.S. Army Hospital in Columbia, Missouri.  He also states, in effect, that documents were submitted to the personnel section at Fort Carson, Colorado at the time of his discharge, but that it was not entered into his Official Military Personnel File (OMPF), and that this is unjust and should be corrected.

3.  The applicant provides his DD Form 214; orders, dated 28 April 1978, which ordered the 5503rd U.S. Army Hospital and its members to annual training (AT) from 10 to 24 June 1978; and orders, dated 12 February 1979, which relieved him from assignment with the 5503rd U.S. Army Hospital effective 1 December 1978 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 he served on active duty in the Regular Army from 13 September 1974 to 12 September 1977, and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  The DD Form 214 with an ending date of
12 September 1977 shows he completed 3 years of active service.    

3.  Orders, dated 10 May 1978, reassigned the applicant from the USAR Control Group (Reinforcement) to the 5503rd U.S. Army Hospital effective 11 February 1978. Orders, dated 28 April 1978, ordered the 5503rd U.S. Army Hospital and its members to AT from 10 to 24 June 1978.  Orders, dated 12 February 1979, relieved him from assignment with the 5503rd U.S. Army Hospital and reassigned him back to the USAR Control Group (Reinforcement).  

4.  On 8 November 1979, the applicant again enlisted in the Regular Army, and he served on active duty until he was honorably discharged on 28 August 1992 by reason of "Reduction in Authorized Strength – Qualitative Early Transition Program." Item 12d of his DD Form 214 shows that he had 3 years of total prior active service.

5.  Army Regulation 635-5 (Separations Documents) provides guidance on the preparation of the DD Form 214.  This regulation has consistently provided that for item 12d, from previously issued DD Forms 214, enter the total amount of prior active military service, less any lost time, if any.

6.  Army Regulation 635-5 also states, in pertinent part, that a DD Form 214 will not be prepared for Reserve Component (RC) Soldiers completing less than 90 days of continuous active duty for training (ADT), Full-Time National Guard Duty (IFTNGD), active duty for special work (ADSW), temporary tours of active duty (TTAD), or Active Guard Reserve (AGR) service.

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 item 12d of his DD Form 214 should be changed to show that he had 4 years of total prior active service.  

2.  While the applicant contends that item 12d of his DD Form 214 should be corrected to show that he had 4 years of total prior active service, his service with the 5503rd U.S. Army Hospital from 11 February 1978 to 1 December 1978 was not active duty service; rather it was RC AT.  While the applicant may have completed AT with this unit from 10 to 24 June 1978, there is no provision for issuing a DD Form 214 for this period of AT.  As a result, item 12d of the applicant's DD Form 214 appropriately shows that he had 3 years of total prior active service.

3.  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.  In view of the foregoing, there is no basis for correcting item 12d of the applicant's DD Form 214.

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)                                         AR20080014401



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ABCMR Record of Proceedings (cont)                                         AR20080014401



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