IN THE CASE OF:
BOARD DATE: 14 APRIL 2009
DOCKET NUMBER: AR20080018828
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, his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an ending date of 5 January 1991 be corrected in Item 6 (Reserve Obligation Termination Date) to show 25 April 2001 vice 25 April 1998.
2. The applicant states he was discharged on 25 April 2001, not 25 April 1998.
3. The applicant provides a copy of his DD Form 214.
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 South Carolina Army National Guard (SCARNG) on 26 April 1990. On 10 July 1990, he entered an active duty for training (ADT) status. After completing 5 months and 23 days of ADT, he was separated on 5 January 1991 and returned to his SCARNG unit. His DD Form 214 shows he entered active duty on 90 07 10 and he was released from active duty on 91 01 05. It also shows his Reserve Obligation Termination Date in Item 6 as 98 04 25.
3. The applicant served as a member of the SCARNG until 17 September 1999 when he was honorably discharged and transferred to the US Army Reserve Control Group (Annual Training).
4. All of the services use the same enlistment contract DD Form 4/1. This is the contract that is used for military enlistments and re-enlistments. All non-prior service enlistments in the United States Military incur a total 8-year military service obligation (MSO). When an individual signs the enlistment contract, he/she is obligating him/herself to the military for a total of 8 years. Whatever time is not spent on active duty, or in the Active Guard Reserve (AGR), must be spent in the inactive Reserve. Paragraph 10a of DD Form 4/1 states:
FOR ALL ENLISTEES: If this is my initial enlistment, I must serve a total of eight (8) years. Any part of that service not served on active duty must be served in a Reserve Component unless I am sooner discharged.
5. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army (RA), the US Army Reserve (USAR), and the Army National Guard (ARNG). Paragraph 1-10 (USAR/ARNG Membership), in pertinent part, provides that service in the ARNG is either statutory or contractual.
a. Statutory service. Under provisions of 10 USC 651, each person who becomes a member of a US Armed Force, either by enlistment, appointment, or induction, will serve in the US Armed Forces a total initial period of 8 years. Any part of such service that is not active duty will be performed in a Reserve component. A person's statutory military service obligation runs concurrently with a contractual military service obligation.
b. Contractual service. Each person who enlists or reenlists in a US Armed Force executes a contractual agreement (DD Form 4) that establishes the terms of the service to be performed in that US Armed Force. The contractual
agreement runs concurrently with all incurred statutory obligations. Following termination of all statutory obligations, any subsequent military service is served according to the terms of the contractual agreement.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests Item 6 of his DD Form 214 be corrected.
2. Every Soldier has an MSO. At the time the applicant enlisted, the MSO was 8 years, and the 8-year obligation commenced on his PEBD of 26 April 1990. Thus, the applicants Reserve Obligation Termination Date was 25 April 1998. This date is properly entered in Item 6 of his DD Form 214.
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.
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.
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