IN THE CASE OF:
BOARD DATE: 11 June 2009
DOCKET NUMBER: AR20090004016
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 National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) be corrected to reflect that he served for 13 years.
2. The applicant states that he stayed in the Army National Guard (ARNG) for
13 years; however, his discharge document only shows 12 years. He goes on to state that he stayed an additional year for Desert Storm and did not get credit for it on his discharge papers. He also states that he went to the Department of Veterans Affairs (DVA) in Richmond, Virginia and they would not treat him because they said he was short 1 "hour" of service and he desires to know why he was not accepted for treatment.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).
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 applicant enlisted in the Virginia Army National Guard (VAARNG) on 13 February 1978 for a period of 6 years. He was ordered to initial active duty for training (IADT) on 14 May 1978 and after completing his IADT, he was honorably released from IADT on 27 October 1978 and was returned to his VAARNG unit. He had served 5 months and 14 days of total active service.
3. The applicant continued to serve in the VAARNG and he was promoted to the pay grade of E-5 on 7 June 1982.
4. On 12 December 1983, the applicant extended his enlistment of 13 February 1978 for a period of 6 years and a Selected Reserve Incentive Program (SRIP) Reenlistment Bonus. His new expiration of term of service (ETS) was established as 12 February 1990.
5. On 12 February 1990, the applicant was honorably discharged from the VAARNG and the United States Army Reserve due to the expiration of his service obligation (ETS). He had served 12 years of total active service.
6. A review of the applicant's official records failed to show that the applicant ever executed an extension of his reenlistment beyond his 12 February 1990 ETS. Additionally, his NGB Form 23 (Retirement Credits Record) does not reflect any retirement points issued beyond 12 February 1990.
DISCUSSION AND CONCLUSIONS:
1. 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.
2. The applicant's contention that he served 13 years in the ARNG has been noted; however, he has failed to show through the evidence of record and the evidence submitted with his application that such was the case.
3. The evidence of record clearly shows that he was discharged on his ETS and since reenlistments are volitional acts on the part of the individual Soldier, it is
incumbent on the Soldier to make the decision whether to extend their service or
not. The applicant has failed to show that he extended his ETS past his 12 February 1990 ETS date. Therefore, absent such evidence, there appears to be no basis to grant his request.
4. The fact that the applicant is attempting to obtain benefits from the DVA was noted. However, the DVA administers its benefit programs under its own regulations and policies, and granting DVA benefits is not within the purview of the ABCMR.
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) AR20090004016
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ABCMR Record of Proceedings (cont) AR20090004016
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