IN THE CASE OF:	

		BOARD DATE:	7July 2009  

		DOCKET NUMBER:  AR20080019371 


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 records be corrected in such a way to show that he served for more than 180 consecutive days, other than for training, prior to 15 October 1976 in order to qualify for a 5 point Veterans’ Preference as outlined by the United States Postal Service. 

2.  The applicant states, in effect, that he served on active duty between December 1974 and June 1975 while a member of the United States Army Reserve and was issued a DD Form 214 (Report of Separation from Active Duty).  However, he states that service does not count for entitlement to the 5 point Veterans’ Preference he is seeking with the United States Postal Service.  He asks if there is any way for his service in the United States Army Reserve to be included in his active duty service on his two subsequent DD Forms 214 (1977 and 1983) in order to claim entitlement to the 5 point preference.  He contends he served his country like everyone else and believes it is unfair to be denied entitlement to the Veterans’ Preference.

3.  The applicant provides copies of his three DD Forms 214 and a copy of the requirements for the 5 point Veterans’ Preference extracted from the United States Postal Service website. 





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.  Records available to the Board indicate the applicant enlisted in the United States Army Reserve on 17 September 1974 for a period of 6 years.  On 
27 December 1974 he was ordered to active duty to undergo training.  He was released from active duty for training and returned to the control of the United States Army Reserve on 15 June 1975 after having served on active duty for a period of 5 months and 19 days.  He was issued a DD Form 214 reflecting this period of active duty for training.

3.  On 7 October 1976 the applicant was involuntarily order to active duty under the provisions of Army Regulation 135-91 (Army National Guard and Army Reserve Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) for a period of 18 months and 11 days. 

4.  The applicant was honorably discharged on 29 November 1977 and on 
30 November 1977 enlisted in the Regular Army.  The applicant continued to service on active duty as a member of the Regular Army until 24 June 1983.  

5.  According to information contained on the U.S. Office of Personnel Management website, Veterans' Preference in its present form comes from the Veterans' Preference Act of 1944, as amended, and is now codified in various provisions of title 5, United States Code.  By law, veterans who are disabled or who served on active duty in the Armed Forces during certain specified time periods or in military campaigns are entitled to preference over others in hiring from competitive lists of eligibles and also in retention during reductions in force.
The 5 Point Preference applies to veterans who served during a war or:



   During the period April 28, 1952 through July 1, 1955; 
   
   For more than 180 consecutive days, other than for training, any part of which occurred after January 31, 1955, and before October 15, 1976;
   
   During the Gulf War from August 2, 1990, through January 2, 1992;
   
   For more than 180 consecutive days, other than for training, any part of which occurred during the period beginning September 11, 2001, and ending on the date prescribed by Presidential proclamation or by law as the last day of Operation Iraqi Freedom; 
   
   In a campaign or expedition for which a campaign medal has been authorized. Any Armed Forces expeditionary medal or campaign badge, including for service in El Salvador, Lebanon, Grenada, Panama, Southwest Asia, Somalia, and Haiti.

6.  The information contained on the document provided by the applicant from the United States Postal Service is consistent with the information from the U.S. Office of Personnel Management.

7.  Army Regulation 635-5 (Separation Documents) govern the preparation of the DD Form 214.  It states, essentially, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The date the Soldier entered active duty status and the effective date of separation will be shown in designated blocks. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board indicates the applicant served on active duty prior to 15 October 1976 for the purpose of training while a member of the United States Army Reserve and as such did not meet requirements for entitlement to the Veterans’ Preference.  Policies for the assignment of Veterans’ Preference as they apply to government positions are dictated by law.

2.  The applicant’s DD Forms 214 were properly issued and there is no basis to correct any of those documents in such a way to qualify the applicant for entitlement to Veterans’ Preference.

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 the aforementioned requirement.

4.  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.

ABCMR Record of Proceedings (cont)                                         AR20080019371



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ABCMR Record of Proceedings (cont)                                         AR20080019371



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