IN THE CASE OF:
BOARD DATE: 21 July 2009
DOCKET NUMBER: AR20090004109
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) with the period ending 31 December 2003 to show award of the Legion of Merit. In addition, he requests that his DD Form 214 be corrected to show he successfully completed the U.S. Army War College course.
2. The applicant states, in effect, that his award of the Legion of Merit was not added to his DD Form 214 when he retired. He further states that he graduated from the Senior Service School, U.S. Army War College in July 2004 after he retired. At that time he was a member of the New York Army National Guard (NYARNG).
3. The applicant provides his DD Form 214; NYARNG Orders 143-023, dated
23 May 2003; Headquarters, First U.S. Army Permanent Orders Number 364-5, dated 30 December 2003; a Legion of Merit certificate, dated 30 December 2003; two diplomas from the U.S. Army War College, dated 23 July 2004; and a DA Form 1059-2 (Senior Service College Academic Evaluation Report), dated
23 July 2004.
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. On 18 May 1981, the applicant was appointed in the NYARNG under the Early Commissioning Program at the rank of second lieutenant. He was ordered to active duty on 23 September 1983. The applicant was honorably released from active duty on 22 August 1988 and transferred to the U.S. Army Reserve (USAR) Control Group.
3. On 24 August 1988, the applicant was appointed in the NYARNG at the rank of captain and entered active duty in an Active Guard Reserve (AGR) status.
4. Headquarters, First U.S. Army, Fort Gillem, GA, Permanent Order Number 364-5, dated 30 December 2003, awarded the applicant the Legion of Merit.
5. The applicant retired from active duty on 31 December 2003, in the rank of lieutenant colonel. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 with the period ending 31 December 2003 does not show award of the Legion of Merit. Item
14 (Military Schools) does not show he completed the U.S. Army War College.
6. A DA Form 1059-2, dated 24 July 2004, shows that the applicant successfully completed the U.S. Army War College course on that date.
7. Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a synopsis of the Soldiers most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows that the applicant was awarded the Legion of Merit on 30 December 2003 prior to him retiring on 31 December 2003. Therefore, item 13 of the applicant's DD Form 214 should be amended to add the Legion of Merit.
2. The applicant contends that the U. S. Army War College course should be added to his DD Form 214. However, in accordance with Army Regulation 635-5, he would have had to have been on active duty for it to be added to his DD Form 214. This service school was completed outside the period covered by his DD Form 214. Therefore, he is not entitled to have this course added to his DD Form 214.
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 adding to item 13 of the applicant's DD Form 214 with the period ending
31 December 2003 the Legion of Merit.
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 adding the U.S. Army War College course to his DD Form 214 with the period ending 31 December 2003.
____________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) AR20090004109
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ABCMR Record of Proceedings (cont) AR20090004109
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