IN THE CASE OF:	  

		BOARD DATE:	        03 FEBRUARY 2009

		DOCKET NUMBER:  AR20080014465 


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 his military records be corrected to show that he served 2 years of active duty in the Army of the United States, and that he be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for his active duty service.

2.  The applicant essentially states that having been in the New York Army National Guard since 1952, he accepted a voluntary induction into the Army of the United States on 1 April 1957 and served on active duty until 1 April 1959.  He also states that he was never issued a DD Form 214 for his active duty service, and that a Certification of Military Service, dated 10 June 1975, incorrectly shows that he was a member of the National Guard of the United States from 1957 to 1959 instead of the Army of the United States.

3.  The applicant provides a GSA Form 6958 (Certification of Military Service), dated 10 June 1975; orders, dated 27 March 1959, which released him from active duty on 28 March 1959; a letter, dated 30 March 1959, from Headquarters, United States Army Armor Center, Fort Knox, Kentucky; orders, dated                 3 June 1958, which reassigned him from Company A, Special Training Regiment to Company G, Special Training Regiment; orders, dated 31 March 1958, which changed his military occupational specialty; a letter, dated 18 August 2008, from the National Personnel Records Center to a Member of Congress; a facsimile header sheet, dated 8 August 2008; a letter, dated 8 August 2008, from a Member of Congress to the Director of the National Personnel Records Center; and a Privacy Act Release Form, which appears to be dated 30 July 2008, with a continuation sheet 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 majority of the applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the majority of the applicant's records were lost or destroyed in that fire.  However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.

3.  The available records show that the applicant had a pay entry basic date in November 1952 and that he was a member of the National Guard of the United States, as evidenced by his service number having a prefix of "NG" (for National Guard).  A reassignment memorandum, dated 1 April 1957, shows in part that the applicant was voluntarily ordered to active duty as a member of the National Guard of the United States on 1 April 1957 for 24 months of active duty service.

4.  Orders, dated 27 March 1959, essentially show that the applicant, a member of the National Guard of the United States, was released from his assignment to Company G, Special Training Regiment, Fort Knox, Kentucky, and released from active federal service on 28 March 1959.  These orders also show that the applicant reverted back to control of the State of New York at that time.

5.  The applicant's military records contained a National Archives (NA) Form 13038 (Certification of Military Service), issued on 15 October 1998, which essentially shows that the applicant served on active duty as a member of the National Guard of the United States from 1 April 1957 to 28 March 1959 and that his characterization of service was honorable.

6.  In his Privacy Act Release Form, the applicant essentially stated that he would like to be buried in a military cemetery, and that he needs something to prove that he honorably served on active duty for 2 years in the Army.
7.  Information from the Department of Veterans Affairs website provides that the NA Form 13038 is one of the documents which may be used to establish honorable active military service.

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.  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 his military records should be corrected to show that he served 2 years of active duty in the Army of the United States and that he should be issued a DD Form 214 for his active duty service.

2.  While the applicant contends that he served on active duty for 2 years, he actually served on active duty from 1 April 1957 to 28 March 1959, which is only 1 year, 11 months, and 28 days.  Additionally, while the applicant contends that his active duty service was in the Army of the United States, the evidence of record shows that he was voluntarily ordered to active duty as a member of the National Guard of the United States.  As a result, there is insufficient basis for correcting his military records to show that he served 2 years of active duty in the Army of the United States.

3.  It is clear that the applicant desires to be buried in a military cemetery upon his death and that he wishes to have a DD Form 214 issued to him for his active duty service.  However, if the applicant was issued a DD Form 214 at the time of his release from active duty, it appears not to have survived the fire at the National Personnel Records Center in 1973.  As there is insufficient information in the remaining records to properly prepare a DD Form 214 on the applicant, he was issued a GSA Form 6958 in June 1975, and also an NA Form 13038 in October 1998.  In view of the foregoing, there is insufficient evidence to issue him a DD Form 214 for his active duty service from 1 April 1957 to 28 March 1959.  However, the Department of Veterans Affairs National Cemetery Administration, which maintains the majority of national cemeteries, accepts both a GSA Form 6958 and an NA Form 13038, with some exceptions, to verify eligibility for burial benefits.  The applicant is advised that he should contact a Department of Veterans Affairs Veteran's Benefit Counselor at 1-800-827-1000 to determine his eligibility for burial in a national cemetery.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  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 the United States.  The applicant and all Americans should be justifiably proud of his 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)                                         AR20080014465



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ABCMR Record of Proceedings (cont)                                         AR20080014465



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