BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090003112 


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 he be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for his active duty service from 7 January 1990 through 22 April 1990.

2.  The applicant states, in effect, he was never issued a DD Form 214 for the active duty service in Korea he completed from 7 January 1990 through 22 April 1990 and would like one issued now.  He also states that prior active duty service periods he completed should also be accounted for on the DD Form 214 issued and that the documents he is providing should be added to his record.

3.  The applicant provides the following documents in support of his application:  Alabama State Military Department Orders 002-002, dated 2 January 1990; leave and earning statements (LES's) for the period January 1990 through April 1990; Headquarters, 23rd Support Group and Area VI, memorandum, dated 13 April 1990, subject:  Letter of Input; Meritorious Service Medal Certificate; U.S. Army Reserve Personnel Center memorandum, subject:  Records Review; U.S. Total Army Personnel Command Orders A-02-012229, dated 7 February 1991; Headquarters, U.S. Army Infantry Center, Orders 071-666, dated 12 March 1991; DD Form 214, dated 13 March 1991; Standard Form 93 (Report of Medical History); Standard Form 88 (Report of Medical Examination); DD Forms 214; DD Forms 220 (Active Duty Reports); and Service Record Extract.


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 record shows he initially enlisted in the Army National Guard (ARNG) on 2 June 1960.  He continually served in that status until being honorably discharged on 19 July 1963 in order to accept a commission.

3.  On 20 July 1963, the applicant was commissioned as a second lieutenant in the ARNG.  On 14 February 1991, the applicant was ordered to active duty for training (ADT).  The DD Form 214 he was issued at that time he was released from active duty on 13 March 1991 shows he served on ADT for a period of 1 month.

4.  The applicant's record shows he served continually in the ARNG until 18 August 1991, at which time he was honorably separated from the ARNG and transferred to the Retired Reserve in the rank of lieutenant colonel (LTC).

5.  On 6 July 2002, upon reaching age 60, the applicant was placed on the Army of the United States Retired List in the rank of LTC.

6.  The applicant's official military personnel file (OMPF) contains an Adjutant General's Office Form 23 (Statement of Service) that shows he completed a total of 31 years, 2 months, and 17 days of military service.  A National Guard Bureau Form 23 (Retirement Credits Record) on file shows he served on active duty during the period 6 January 1990 through 22 April 1990.

7.  The applicant provides a copy of Alabama State Military Department Orders 002-002, dated 2 January 1990.  These orders directed the applicant’s order to active duty for special work (ADSW) at Camp Humphreys, Republic of Korea, for a period of 106 days (7 January 1990 through 22 April 1990) with a reporting date of 8 January 1990.
8.  The applicant also provides copies of LES's for the period 6 January 1990 through 22 April 1990 which show he was on ADSW for a period of 106 days.

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-1 contains guidance on when a DD Form 214 should be issued.  It states, in pertinent part, that Reserve Component (RC) Soldiers completing 90 days or more of continuous active duty should receive a DD Form 214.  It also stipulates that a DD Form 214 will not be issued to replace record copies or DD Forms 214 lost by Soldiers.  If no DD Form 214 is available, a Statement of Service or Transcript of Military Record will be issued.

10.  Army Regulation 635-5 further stipulates that the total prior active service taken from previous DD Forms 214 issued will be entered in item 12d (Total Prior Active Service) of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be issued a DD Form 214 for his 3 months and 15 days of active duty service performed between 7 January 1990 and 22 April 1990 was carefully considered.

2.  The governing regulation provides for issuing DD Forms 214 to RC Soldiers for any active duty period of 90 days or more and prohibits the issue of a new DD Form 214 to replace record copies or a lost DD Form 214.  In cases where the DD Form 214 is not on file, a Statement of Service or Transcript of Military Record will be issued in lieu of the DD Form 214.

3.  The evidence of record shows the applicant completed an ADSW tour in Korea from 7 January 1990 through 22 April 1990.  Given the regulation provided for issuing a DD Form 214 for this period of active duty service, absent evidence to the contrary, administrative regularity in the separation process must be presumed and the missing DD Form 214 must be treated as a lost document.  As a result, it is not appropriate to issue a new DD Form 214 for the active duty period in question.  However, it would be appropriate to issue a Statement of Service or Transcript of Military Record to document this period of active duty service.

4.  Further, since the replacement documents do not allow for entering prior periods of active duty service, the applicant's request to add additional periods of active duty service cannot be honored.  However, it is noted that the applicant was subsequently issued a DD Form 214 in 1991 and it is reasonable to presume these prior periods of active duty service are accounted for in that document.

5.  The documents provided by the applicant that he requested to be added to his record will be filed in the OMPF along with this Record of Proceedings which should satisfy his request to update his record and clarify the periods of active duty service he completed.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a Statement of Service/Transcript of Military Record to document his period of active duty service from 7 January 1990 through 22 April 1990.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to issuance of a new DD Form 214 for the period of active duty service in question and to include periods of prior active duty service in this document.



      ___________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)                                         AR20090003112



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ABCMR Record of Proceedings (cont)	                                         AR20090003112



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