IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20090001878 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 28 April 2005, items 11 (Primary Specialty) and 14 (Military Education), be corrected.

2.  The applicant states that he was only a truck driver for 4 months and he has certificates of training to show that he has military education which was omitted from his DD Form 214.

3.  The applicant provides excerpts from his military records.

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's military records show that he enlisted in the U.S. Army Reserve (USAR) in pay grade E-3 for assignment to a troop program unit on 30 November 1988 with 4 months of prior active service and 5 years, 7 months, and 13 days of prior inactive service.

3.  He enlisted in the Army National Guard in pay grade E-1 on 28 February 2001.

4.  He again enlisted in the USAR in pay grade E-3 on 12 May 2003.

5.  The applicant was ordered to active duty in support of Operation Iraqi Freedom on 8 October 2004.

6.  On 15 April 2005, the applicant's commander recommended that the applicant be separated for misconduct, commission of a serious offense, based on him testing positive for cocaine.  In the separation packet, the applicant's military occupational specialty (MOS) was recorded as 88M, motor transport operator.

7.  The applicant's records do not show that he completed any military schools during this period of active duty.

8.  On 28 April 2005, the applicant was discharged under other than honorable conditions.  The DD Form 214 he was issued shows:

	a.  in item 11, "88M1O 00 MOTOR TRANSPORT OPERATOR--21 YRS-11 MOS//88U1O 00 RAILWAY OPERATIONS CREWMEMBER (RC)--15 YRS-8 MOS//NOTHING FOLLOWS."

	b.  in item 14, "NONE//NOTHING FOLLOWS."
   
9.  Army Regulation 635-5 (Separation Documents) established the standardized policy for preparing and distributing the DD Form 214.  This regulation, in effect at the time, provided, in pertinent part, that the MOS codes, titles, years, and months served will be entered in item 11.  Enter the titles of all MOSs served for at least 1 year (with the exception of Reservists and Guardsmen serving short tours of active duty) and include for each MOS the number of years and months served.  For time determination, 16 days or more count as 1 month.  Do not count basic training and advanced individual training.  In the processing of similar cases, the Human Resources Command - Alexandria (HRC-A) clarified the entries of MOSs on DD Forms 214.  The HRC-A stated that since a DD Form 214 is a summary of a Soldier's most recent period of continuous active duty, only the time served in MOSs during the period covered by the DD Form 214 is entered in item 11.
10.  Army Regulation 635-5, in effect at the time, in pertinent part, stated that in-service (resident) training courses, title, number of weeks, and year successfully completed during this period of service will be entered in item 14.  It further stated that this information is to assist the member after separation in job placement and counseling; therefore, training courses for combat skills are not listed.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence that the applicant successfully completed any military schooling during his period of active duty ending on 28 April 2005.  Since only military schooling which was successfully completed during the period covered by a DD Form 214 is to be entered in item 14, the entry "NONE//NOTHING FOLLOWS" was the correct entry and there is no reason to change it.

2.  However, the applicant is correct in that the entry in item 11 is in error.  In accordance with guidance provided by HRC-A, only the time spent in an MOS during the period covered by the DD Form 214 is to be entered in item 11.  Since the applicant's records show that he held MOS 88M during the time he was on active duty, that is the sole MOS which should have been entered on his DD Form 214.  Since he was on active duty for 6 months and 21 days, the correct entry for time served in the MOS is 7 months.

3.  However, correcting item 11 would make the applicant worse off, and it is the policy of the Board not to correct a record in a manner which would make an applicant worse off.  As such, the entry in item 11 will remain unchanged.

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)                                         AR20090001878



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ABCMR Record of Proceedings (cont)                                         AR20090001878



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