IN THE CASE OF:	

		BOARD DATE:	 12 March 2009 

		DOCKET NUMBER:  AR20080015413 


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 that his military records be corrected to show he was discharged from the U.S. Army Reserve (USAR) on 8 February 1997 instead of 4 December 2001.

2.  The applicant states that he served in the U.S. Marine Corps (USMC) from 1980 to 1989 and then had a 14-year break in service.  He states he enlisted in the New York Army National Guard (NYARNG) on 9 February 1994 for 3 years, so he should have been discharged on 8 February 1997.  He states that on 25 September 1995 he was transferred to the Individual Ready Reserve (IRR).  He states he performed no service in the USAR Control Group (Reinforcement) from 8 February 1994 to 4 December 2001, the date he was finally discharged.  He states that because of the erroneous discharge date, his records show he has over 16 years of total service and made him ineligible for an enlistment bonus when he enlisted in the USAR on 5 April 2008.

3.  The applicant provides, in support of his application, copies of his ARPC Form 249-2E (Chronological Statement of Retirement Points); page 2 of his DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States); orders transferring him to the USAR Control Group (Reinforcement); his NGB Form 55a (Automated Separation Document, Report of Separation and Record of Service) from the NYARNG; electronic mail (e-mail) from the USAR Pay Center at Fort McCoy, WI; his discharge orders from the USAR; his discharge certificate; his DD Form 4 and addendum for his enlistment on 5 April 2006; and a memorandum from the U.S. Army Human Resources Command, St. Louis (HRC-STL), MO, Inspector General (IG).
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 enlisted in the NYARNG on 9 February 1994 for a period of 3  years.  He had previously served 12 years, 2 months, and 7 days of active duty in the USMC.

3.  Effective 1 October 1994, the applicant was transferred to the Inactive National Guard, Battery B, 1st Battalion, 258th Field Artillery, NYARNG.

4.  Effective 25 September 1995, the applicant was honorably discharged from the NYARNG and transferred to the USAR Control Group (Reinforcement).  His NGB Form 55A showed his terminal date of obligation as 8 February 1997.

5.  HRC-STL Orders D-12-1555443, dated 4 December 2001, honorably discharged the applicant from the USAR.

6.  On 5 April 2006, the applicant enlisted in the USAR for a period of 6 years in the pay grade of E-5.

7.  A letter, dated 21 August 2008, from the HRC-STL IG substantiated the applicant's claim that he should have been discharged from the USAR on 8 February 1997 instead of 4 December 2001 and directed him to the ABCMR to seek recourse.

8.  An e-mail message, dated 22 August 2008, from the USAR Pay Center, Fort McCoy, verified that the applicant had not received any pay from 1997 until the date of his enlistment on 5 April 2006.

9.  In the processing of this case, an advisory opinion, dated 15 January 2009, was provided by HRC-STL.  The applicant was provided a copy of this opinion and given 30 days to submit matters in rebuttal; however, no response has been received.

10.  HRC-STL states that records show the applicant signed a contract on 9 February 1994 for 3 years, making his expiration of required service date 8 February 1997.  HRC-STL also states the applicant's ARPC Form 249-E should show a break in service from 9 February 1997 to 4 April 2006.

11.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) provides that a Soldier may voluntarily remain beyond the expiration date of a service obligation to obtain required health care or involuntarily when action with a view toward trial by court-martial has been taken by the appropriate authorities.

12.  Army Regulation 135-178 also provides that when, through administrative error, a Soldier is not discharged on the actual date of completion of term of enlistment, reenlistment, or date of completion of statutorily obligated service the remark "Retained beyond normal discharge date for the convenience of the Government" will be included in the Soldier's DA Form 2-1 (Personnel Qualification Record).

DISCUSSION AND CONCLUSIONS:

1.  The applicant should have been discharged from the USAR on 8 February 
1997, the expiration of his contractual agreement. 

2.  There is no evidence the applicant was retained in the USAR due to court-martial proceedings or to obtain medical treatment.

3.  Army Regulation 135-178 provides for cases where a Soldier is not discharged on the actual date of the completion of his contract due to administrative error.  However, it is reasonable to conclude that the intent of this regulation is not to keep an individual in the USAR over 5 1/2 years after the expiration of his enlistment.

4.  Therefore, as a matter of equity, in this case only, it would be appropriate to correct the applicant's military records to show he was discharged from the USAR on 8 February 1997 and that he had a break in service from 9 February 
1997 to 4 April 2006.  It is also appropriate that his ARPC Form 249-2E be updated to reflect the above changes.



BOARD VOTE:

___X____  ____X__  ___X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was discharged from the USAR on 8 February 1997 and that he had a break in service from 9 February 1997 to 4 April 2006.

2.  The Board also recommends that the applicant's ARPC Form 249-2E be updated to reflect the above changes.



      ___________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)                                         AR20080015413



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ABCMR Record of Proceedings (cont)                                         AR20080015413



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