IN THE CASE OF:
BOARD DATE: 18 February 2009
DOCKET NUMBER: AR20080017103
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, correction of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show he served in the Regular Army in an active duty status.
2. The applicant states that his DD Form 214 shows his service as active duty for training (ACDUTRA). He contends that he spent over 4 months in an Army hospital; therefore, his service should be reflected as active duty. He states, in effect, that Title 38, U. S. Code, provides in its general provisions the definition for active service time in the military. The term "active military, naval, or air service" includes active duty and any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. He believes information was left out that impacts his status as a veteran. He further contends that he has been discriminated against as a non-veteran by the State of New Jersey because his DD Form 214 does not show his service as active duty.
3. The applicant provides, in support of his application, copies of his DD Form 214 and his service medical records (approximately 138 pages).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On or about 12 July 1969, the applicant enlisted in the New Jersey Army National Guard. His Report of Medical Examination shows that he was found fully qualified for enlistment and had a physical profile of 1-1-1-1-1-1.
3. On 18 November 1969, the applicant was ordered to ACDUTRA.
4. On 18 February 1970, the applicant was admitted to Walter Reed Army Medical Center for treatment of kidney stone(s). He received medical treatment and was subsequently discharged from the medical facility and returned to duty on 17 April 1970.
5. On 18 August 1970, the applicant was released from ACDUTRA and transferred back to the New Jersey Army National Guard. He was awarded military occupational specialty (MOS) 71H (Personnel Specialist). He had completed 9 months and 13 days of ACDUTRA.
6. Title 38, U. S. Code, section 101(Definitions), paragraph 21, provides that the term "active duty" means full-time duty in the Armed Forces, other than active duty for training. It further provides at paragraph 24 that the term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that because he was hospitalized during a portion of his ACDUTRA, his service should be recognized as active duty.
2. While the available evidence clearly shows that he was hospitalized during his ACDUTRA, he was not found unfit or disabled. He successfully completed his training and was returned to the New Jersey Army National Guard for duty.
3. The applicant's DD Form 214 clearly shows he served on ACDUTRA for
9 months and 13 days. There is no evidence of any error or injustice.
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 the aforementioned requirement.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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.
_______ _ 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.
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