BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090005641 


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 he be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 11 February 2003 through 29 October 2003.

2.  The applicant states “I received a copy of my DD 214 saying that I wasn’t on active duty for 90 occurring days.”  He states that he has orders that called him to active duty in support of Operation Enduring Freedom and that he was stationed at Fort Bragg, North Carolina.

3.  The applicant provides a copy of the orders which ordered him to active duty; copies of financial documents which would have started his Basic Allowance for Quarters and Family Separation Allowance; a copy of his W-4 Form (Employee’s Withholding Allowance Certificate), dated 7 February 2003, and a copy of a State of Legal Residence Certificate signed on 11 February 2003.

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.  Records available to the Board indicate the applicant enlisted in the United States Army Reserve (USAR) for a period of 8 years on 9 May 2000.

3.  According to the mobilization order provided by the applicant, he was a member of the 846th Transportation Company in Salisbury, North Carolina when he was ordered to active duty with that unit on 11 February 2003.  His order indicated he was to report to his unit on 11 February 2003 and then to Fort Bragg, North Carolina on 14 February 2003 for a period of 365 days.  He mobilized in support of Operation Enduring Freedom.  The authority for the orders was listed as “DA Mobilization Order 311-03, dated 8 February 2003.

4.  The financial documents provided by the applicant, as well as his W-4 Form and State of Legal Residence Certificate, would have been completed in conjunction with him being ordered to active duty.

5.  The applicant’s Official Military Personnel File (OMPF) contains a reassignment order, dated 15 October 2003, which was issued by the 2125th Garrison Support Unit at Fort Bragg, North Carolina, releasing the applicant from the 2125th Garrison Support Unit and returning him to his parent USAR unit (846th Transportation Company) in Salisbury, North Carolina, effective 
15 October 2003.  The “purpose” of the reassignment was recorded on those orders as “separation.”

6.  On 29 September 2004 the applicant was discharged from the USAR under honorable conditions.

7.  The applicant’s OMPF is void of any documents associated with his February 2003 mobilization other than the 15 October 2003 reassignment order issued at Fort Bragg.

8.  Army Regulation 635-5 (Separation Documents) states that a Reserve component Soldier completing 90 days or more of continuous active duty for training (ADT), active duty for special work (ADSW), or temporary tours of active duty (ITAD) will be issued a DD Form 214.  

9.  That same regulation states that USAR Soldiers mobilized under sections 12301(a), 12302, or 12304, title 10, U.S. Code, regardless of length of mobilization, will receive a DD Form 214 when transitioned from active duty.  However, it also states that a Soldier who reports to a mobilization station and is found unqualified for active duty will be excluded from this provision.  The Soldier will only receive a DD Form 220 (Active Duty Report).

10.  Section 12301(a), title 10, U.S. Code states:

In a time of war or national emergency declared by Congress, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons affected, order any unit, and any member not assigned to a unit organized to serve as a unit, of a reserve component under the jurisdiction of that Secretary to active duty for the duration of the war or emergency and for 6 months thereafter.  However a member on an inactive status list or in a retired status may not be ordered to active duty under this subsection unless the Secretary concerned, with the approval of the Secretary of Defense in the case of the Secretary of a military department, determines that there are not enough qualified Reserves in an active status or in the inactive National Guard in the required category who are readily available.

11.  Section 12302, title 10, U.S. Code permits members of the Ready Reserve to be called to active duty in time of a national emergency.

12.  Section 12304, title 20 U.S. Code states:

Notwithstanding the provisions of section 12302(a) or any other provision of law, when the President determines that it is necessary to augment the active forces for any operational mission or that it is necessary to provide assistance referred to in subsection (b), he may authorize the Secretary of Defense and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, without the consent of the members concerned, to order any unit, and any member not assigned to a unit organized to serve as a unit of the Selected Reserve, or any member in the Individual Ready Reserve mobilization category and designated as essential under regulations prescribed by the Secretary concerned, under their respective jurisdictions, to active duty for not more than 365 days.





DISCUSSION AND CONCLUSIONS:

1.  Clearly the applicant was mobilized under one of the appropriate sections of title 10, U.S. Code.

2.  Although the applicant stated in his request that he received a “copy of my DD 214” he failed to provide that copy and his file contains no DD Form 214.  In the absence of that document it cannot be determined whether the form was correctly issued or if the applicant in fact received a DD Form 220 rather than a DD Form 214.  

3.  In view of the fact that orders were issued at Fort Bragg which reassigned the applicant back to his parent organization for the purpose of separation, it is possible the applicant was found unqualified for active duty and as such would not have been issued a DD Form 214 as noted in Army Regulation 635-5.

4.  Although the applicant would have completed various financial documents as well as other required forms as part of his mobilization process the fact such forms were completed is not evidence that he should then have been issued a DD Form 214 upon his transition from active duty.

5.  In the absence of evidence to the contrary, it is presumed that what the Army did in this case was appropriate.  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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request

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)                                         AR20090005641



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ABCMR Record of Proceedings (cont)                                         AR20090005641



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