IN THE CASE OF:
BOARD DATE: 5 March 2009
DOCKET NUMBER: AR20080018552
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 APPLICANTS REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show all of his active duty service.
2. The applicant states, in effect, that his periods of active duty time for the years of 1987-1990 are not shown on his DD Form 214.
3. The applicant provides a DD Form 214 and social security query printouts of FICA earnings and employer names by years.
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. The applicants records show he enlisted in the Kentucky Army National Guard (KYARNG) on 2 March 1985. He entered active duty on 5 August 1985, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 11B (infantryman). He was released from active duty on 1 November 1985 and returned to his KYARNG unit. The applicants DD Form 214 shows 2 months and 27 days of active military service this period.
3. There is no evidence that the applicant served any additional periods of active duty of 90 days or more.
4. Army Regulation 635-5 governs the preparation of the DD Form 214. It states, in pertinent part, that a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, release from active duty service, or control of the Active Army. Personnel included are members of the ARNG of the United States and the U.S. Army Reserve (USAR) after completing 90 days or more of continuous active duty for training, full-time training duty, or active duty support, and completion of initial active duty for training which resulted in the award of an MOS, even though the active duty was less than 90 days.
DISCUSSION AND CONCLUSIONS:
1. As a member of the ARNG of the United States, only periods of 90 days or more of continuous active duty for training, full-time training duty, or active duty support, and completion of initial active duty for training which resulted in the award of an MOS, even though the active duty was less than 90 days would be entered on the applicants DD Form 214.
2. The Board starts its consideration with a presumption of regularity, that what the Army did was correct. The burden of proving otherwise is the responsibility of the applicant. There is no available evidence nor did the applicant provide any evidence to show he performed continuous active duty for a period of 90 days or more, aside from the credited active duty he received for completion of MOS training for which he appropriately received a DD Form 214.
3. In view of the foregoing, there is no basis for granting the applicants 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.
ABCMR Record of Proceedings (cont) AR20080018552
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ABCMR Record of Proceedings (cont) AR20080018552
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