BOARD DATE: 15 September 2009
DOCKET NUMBER: AR20090002194
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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show that he was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 70th Armor instead of HHC, 1st Battalion, 10th Armor.
2. The applicant states that he was assigned to the 70th Armor and not the
10th Armor at the time of his discharge.
3. The applicant provides, in support of this application, a copy of his DD Form 214 that was issued at the time of his discharge and a copy of his DD Form 214 that was issued after his characterization of service was upgraded by the Army Discharge Review Board (ADRB); a copy of 5th Personnel Service Company, Fort Polk, LA, Orders 15-100, dated 23 January 1990, which reassigned him for transition processing and subsequent discharge; and a 3rd Endorsement, dated 18 January 1990, in which his battalion commander approved his discharge action.
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. Item 8a (Last Duty Assignment and Major Command) of his DD Form 214 shows that his last duty assignment was with HHC, 1st Battalion, 10th Armor. However, the applicant's military records clearly show that his last duty assignment was with HHC, 1st Battalion, 70th Armor. 5th Personnel Service Company, Fort Polk, Orders 192-3, dated 4 October 1988, reassigned the applicant from 5th Replacement Detachment to HHC, 1st Battalion, 70th Armor, with a reporting date of 5 October 1988.
3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 214 should be corrected to show that he was assigned to HHC, 1st Battalion, 70th Armor instead of HHC,
1st Battalion, 10th Armor.
2. Evidence of record clearly shows that the applicants last duty assignment was with HHC, 1st Battalion, 70th Armor and not HHC, 1st Battalion, 10th Armor as shown on his DD Form 214. Therefore, item 8a of his DD Form 214 should be corrected to show the entry HHC 1ST BN 70TH AR 5TH ID FC."
BOARD VOTE:
__x_____ ___x____ ___x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 8a of his DD Form 214 the entry "HHC 1ST BN 10 AR 5TH ID FC" and replacing it with the entry HHC 1ST BN 70TH AR 5TH ID FC."
__________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) AR20090002194
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ABCMR Record of Proceedings (cont) AR20090002194
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