IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090009608 


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 placement of the following documents into his Official Military Personnel File (OMPF):

* Active Guard Reserve (AGR) Orders 228-1049 dated 16 August 2002
* AGR Orders 228-1057 dated 16 August 2002
* AGR Orders 141-1012 dated 20 May 2004
* AGR Orders 183-1006 dated 1 July 2004

2.  He also requests the following corrections:

* Amend AGR Orders 228-1057 (Reporting Date)
* Amend AGR Orders 141-1012 to show "reference Orders 228-1040 this Headquarters dated 16 August 2002
* Revoke Orders 092-1001 dated 15 May 2004
* Void DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 15 May 2004
* Amend Permanent Orders 214-1014 dated 3 August 2003 to show the Army Good Conduct Medal (5th Award)
* Amend DA Form 2-1 (Personnel Qualification Record) to show his correct assignment information



3.  The applicant further requests amendment or replacement of his DD Form 214, dated 31 July 2006, and DD Form 215 (Correction to DD Form 214) to show:

* Place of Entry into Active Duty:  Houston TX
* Home of Record at Time of Entry:  Dallas TX
* Date Entered Active Duty This Period:  1993-09-01
* Total Prior Active Service:  6 Years 4 Months and 13 Days
* Total Prior Inactive Service:  2 Years 7 Months and 18 Days
* Army Good Conduct Medal (5th Award)
* Military Education:  "Administrative Specialist Phase I 2 WKS (1994); Basic Noncommissioned Officer Course 5 WKS (1997) Recruiter & Retention Course 5 WKS (2000)"
* Mailing Address After Separation:  Austin TX
* Nearest Relative Address:  xx7 S Cedar St

4.  The applicant states:

* The incorrect reporting date of AGR Orders 1057 creates an erroneous 
1-day break in active service
* AGR Orders 228-1040 continued him in an AGR status on revoked orders
* Permanent Orders 214-1014 show the Army Good Conduct Medal
(3rd Award)
* Item 35 on his DA Form 2-1 shows two incorrect assignments and he is missing two assignments
* Orders 092-1001 and DD Form 214 effective 15 May 2004 were erroneously issued and create a break in service that did not happen
* He was incorrectly issued two overlapping DD Forms 214
* The DD Form 214 and DD Form 215 effective 31 July 2006 contain the identified inaccuracies

5.  The applicant provides a letter from his counsel, dated 25 April 2009.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Army Board for Correction of Military Records (ABCMR) review the applicant's case immediately since it was not the applicant's fault that his application did not go before the correct review board in 2008.

2.  Counsel states, in effect, in February 2007 the applicant's application was erroneously forwarded to the Army Discharge Review Board (ADRB) rather than ABCMR.  The ADRB lacked jurisdiction to review the case and, as such, it would not be fair and would not serve in the interest of justice should the applicant have to wait another year or so to have a proper records review by the ABCMR.  He also reiterates the statements made by the applicant.

3.  Counsel provides the following documentation:

* AGR Orders 172-83
* National Guard Bureau (NGB) Form 22-5-R (Approval and Acceptance by Service Representative for Interstate Transfer in the Army National Guard)
* AGR Orders 254-651
* AGR Orders 228-1049
* AGR Orders 228-1057
* AGR Orders 228-1040
* AGR Orders 252-1004
* AGR Orders 092-1001
* AGR Orders 141-1012
* AGR Orders 183-1006
* DD Form 214 dated 15 May 2004
* DD Form 214 dated 11 September 1991
* Permanent Orders 11-5
* Permanent Orders 4-7
* Permanent Orders 214-1014
* DD Form 214 dated 31 July 2006
* DD Form 215 
* DD Form 220 (Active Duty Report)
* DD Form 214 dated 21 August 1984
* Calculation of his Inactive Duty Training
* Retirement Point Accounting System Statement
* DA Form 1059 (Military Education)
* DA Form 2-1 (Current and Previous Assignments)
* Mississippi Army National Guard (MSARNG) Transfer Orders 165-13
* College Diploma
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)

CONSIDERATION OF EVIDENCE:

1.   The applicant enlisted in the Alabama Army National Guard (ALARNG) on 11 February 1983 and he successfully completed his training as a unit supply specialist.  He was ordered to active duty in the AGR Program, effective 
12 September 1985.  He was released from active duty (REFRAD) at the expiration of his term of service on 11 September 1991 and he was transferred to the ALARNG to complete his service obligation.  The applicant was honorably discharged from the ALARNG on 9 January 1992 to accept an appointment as a commissioned officer.

2.  The applicant accepted an appointment in the ALARNG on 10 January 1992 in the rank of second lieutenant.  On 11 February 1992, his appointment was terminated and he was discharged from the ALARNG to enlist in the ARNG.

3.  On 12 February 1993, the applicant enlisted in the Texas Army National Guard (TXARNG) for 3 years.  He was ordered to Full-Time National Guard Duty (FTNGD) in an AGR status effective 1 September 1993 through 31 August 1996, under Title 32, U.S. Code, section 502(f).  He was transferred to the MSARNG on 14 December 1994.  He extended his enlistment for 5 years, 6 months, and 20 days on 21 May 1996.

4.  On 10 May 1996, Orders 081-231 were published ordering the applicant to FTNGD in an AGR status effective 1 September 1996 through 31 August 2002, under Title 32, U.S. Code, section 502(f), to perform duties as a clerk typist.

5.  The available records show that on 18 April 2001, Permanent Orders 4-7 were published awarding the applicant the Army Good Conduct Medal
(4th Award) for exemplary behavior, efficiency and fidelity in the active Federal service from 1 September 1996 through 31 August 1999.

6.  On 11 September 2001, Orders 254-651 were published ordering him to FTNGD in Austin, TX, effective 2 October 2001 through 1 October 2004, for a
3-year active duty commitment.

7.  On 21 September 2001, Orders 165-013 were published transferring him from the MSARNG to the TXARNG, effective 27 September 2001 (Thursday), to perform duties as a recruiter.  His DD Form 22-5-R shows he took his Oath for the Interstate Transfer to the TXARNG on 1 October 2001 (Monday).

8.  Orders 228-1049 were published on 16 August 2002, revoking Orders
254-651, dated 11 September 2001.

9.  On 16 August 2002, Orders 228-1057 were published assigning him to Austin, TX as a Recruiting and Retention NCO with a reporting date of "29 September 2000."  These orders show his period of active duty commitment as 2 October 2001 through 31 August 2002.



10.  On the same day (16 August 2002), Orders 228-1040 were published ordering the applicant to FTNGD in an AGR status effective 1 September 2002 to 31 August 2004, under Title 32 U.S. Code, section 502(f), for an AGR tour continuation.

11.  Permanent Orders 214-1014 were published on 3 August 2003 awarding him the Army Good Conduct Medal (3rd Award) for exemplary behavior, efficiency and fidelity for the period 1 September 1999 through 31 August 2002.  This order should have shown the 5th award of the Army Good Conduct Medal.

12.  On 9 September 2003, Orders 252-1004 ordered the applicant to proceed on a permanent change of station with a reporting date of 1 October 2003.  These orders also continued him in an AGR status in reference to Orders 228-1040, dated 16 August 2002.

13.  The applicant was provided his Notification of Eligibility for Retired Pay at Age 60 (20-year letter) on 24 February 2004.

14.  On 1 April 2004, Orders 092-1001 were published amending Orders 
228-1040 changing his AGR tour continuation dates to 1 September 2002 through 15 May 2004.

15.  On 15 May 2004, the applicant was provided a DD Form 214 that shows he was REFRAD at the completion of his period of AGR duty and he was transferred to the TXARNG to complete his service obligation.  His DD Form 214 shows his nearest relatives address is the same address that is reflected in his request (xx7 S. Cedar St).  Item 14 (Military Education) shows "Administrative Specialist Phase I 2 WKS (1994); Basic Noncommissioned Officer Course          5 WKS (1997) Recruiter & Retention Course 5 WKS (2000)."

16.  Orders 141-1012 were published on 20 May 2004 which read "You are on active duty in Active Guard/Reserve (AGR) status will proceed on permanent change of station as shown."  He was ordered to report to the Commander, Joint Forces Headquarters, Austin, TX, effective 19 May 2004, with an active duty commitment from 19 May through 1 October 2004 as an Enlisted Records Team Leader.  The orders also read "This order continues you in an AGR Status reference Orders 254-651 this Headquarters, dtd 11 September 2001."  

17.  On 1 July 2004, Orders 183-1006 were published ordering the applicant to FTNGD in an AGR status effective 1 September 2004 through 31 August 2006 for an AGR tour continuation.  Unless he reenlisted or extended his period of enlistment 31 August 2006 was his expiration term of service (ETS) date.

18.  On 31 July 2006, the applicant was issued a DD Form 214 releasing him from active duty under honorable conditions (general) under the provisions of Army Regulation 635-200, chapter 14-12c(2).  The DD Form 214 shows his narrative reason for separation as "involuntary separation from AGR Program."  He was furnished a separation code of JKK (misconduct - drug abuse) and a reentry (RE) code of "3."

19.  The applicant's DD Form 214 also shows the following information which he contends is incorrect:

* Place of Entry on Active Duty:  Forth Worth TX
* Home of Record at Time of Entry:  Louisville MS
* Date Entered Active Duty This Period:  2001-10-02
* Total Prior Active Service:  15 Years 3 Months 11 Days
* Total Prior Inactive Service:  3 Years 4 Months 11 Days
* Army Good Conduct Medal (4th Award)
* Military Education:  None This Period/Nothing Follows
* Mailing Address After Separation:  Cedar Park TX
* Nearest Relative Address:  xx4 S Cedar St

20.  Nowhere in the available evidence of record is his Place of Entry on Active Duty shown as Houston, TX or his Mailing Address after Separation shown as Austin, TX.  However, this DD Form 214 does reflect his home of record at the time of entry as Dallas, TX.

21.  He was honorably discharged from the ARNG on 1 September 2006 (the day after his ETS) and he was transferred to the Retired Reserve.

22.  A review of the interactive Personnel Electronic Records Management System (iPERMS) fails to reveal Orders 228-1049, Orders 228-1057, Orders 141-1012, or Orders 183-1006 contained therein.

23.  On 2 October 2006, the AGR Human Resources NCO in Charge issued the applicant a DD Form 215, which amended his DD Form 214 for his period of active service ending on 31 July 2006, to show his Total Prior Active Service as 14 Years, 9 Months, and 10 Days, and his Total Prior Inactive Service as
2 Years, 10 Months, and 11 Days.

24.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes instructions for preparing and maintaining the DA Forms 2-1 and 2A.  In pertinent part, it states that the DA Forms 2-1 and 2A are the basic record for enlisted personnel and will be prepared and maintained for Active Army, U.S. Army Reserve, and Army National Guard enlisted personnel.
25.  Army Regulation 635-5 (Separation Documents) 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 the preparation of the DD Form 214.  It provides that in-service training courses of at least one week duration will be entered in item 14.  From the Enlisted Record Brief (ERB), list formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the 
DD Form 214.  

26.  Army Regulation 635-5 provides that a Soldier's initial enlistment contract or appointment document, or any approved change by the Enlisted Records and Evaluation Center is the source for data pertaining to the place of entry onto active duty and home of record.  It states, in pertinent part, "Enter the city and state where the Soldier entered active duty.  Enter the street, city, state and ZIP code listed as a Soldier's home of record.  "Home of Record" is the place recorded as the home of record of the Soldier when commissioned, appointed, enlisted, or ordered to a tour of active duty.  This cannot be changed unless there is a break in service of at least 1 full day (Joint Federal Travel Regulations, Volume 1, App A, Part I).  Home of record is not always the same as the legal domicile as defined for income tax purposes.  Legal domicile may change during a soldier's career."

27.  Army Regulation 635-5 provides that the date entered on active duty this period is the beginning date of the continuous period of AD for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.  Enter total amount of prior active military service less lost time, if any, from previously issued DD Forms 214 when determining total prior active service.  From previously issued DD Forms 214 and/or ERB, enter the total amount of total prior inactive service, less lost time, if any.

DISCUSSION AND CONCLUSIONS:

1.  The DA Form 2-1 is prepared and maintained for Active Army, U. S. Army Reserve, and Army National Guard enlisted personnel.  Since the applicant is no longer serving in an active military status no changes will be made to his DA Form 2-1.  If he should reenter military service, he should take his supporting evidence to his personnel office so the appropriate information can be transferred to a newly-created DA Form 2-1.


2.  On 21 September 2001, Orders 165-013 were published transferring him from the MSARNG to the TXARNG, effective 27 September 2001 (Thursday), to perform duties as a recruiter.  His DD Form 22-5-R shows he took his Oath for 
the Interstate Transfer to the TXARNG on 1 October 2001 (Monday).  The applicant should have been furnished the appropriate separation documents to show that he was released from active duty in the MSARNG due to an interstate transfer to the TXARNG.  Since he had to travel from Mississippi to Texas it is understandable that he was not able to take his oath until 1 October 2001.

3.  Additionally, Orders 165-013 should be amended to show the effective date of his release from the MSARNG and transfer to the TXARNG as 1 October 2001.

4.  Orders 228-1057 should be amended to show his TXARNG reporting date as 1 October 2001.  There is no basis for changing his active duty commitment dates as they appear to be proper.

5.  The applicant contends that Orders 141-1012 should be amended to show "reference Orders 228-1040 this Headquarters dated 16 August 2002."  However, based on the available evidence, these orders should be amended to show "reference Orders 252-1004 this Headquarters dated 9 September 2003," which were the orders that continued him in an AGR status reference Orders 228-1040.

6.  There is insufficient evidence in the available record and the applicant has provided insufficient evidence to support his contentions that Orders 092-1001 should be revoked.

7.  While it appears the applicant's DD Form 214 for the period ending on 15 May 2004 should be amended to show the date he entered on active duty this period as 2 October 2001 and his service should be recalculated, there is no basis for totally voiding this DD Form 214.  Orders 092-1001 amended orders 228-1040 to change his active duty commitment from 1 September 2002 through 15 May 2004.  Based on the information he provided the earliest date he can be credited with for his return to active duty is 19 May 2004.

8.  Orders 214-1014, dated 3 August 2003, erroneously show he was awarded the Army Good Conduct Medal (3rd Award).  This award of the Army Good Conduct Medal was his 5th award and his records should be corrected to reflect this information.


9.  The military education the applicant is requesting to be added to his DD Form 214 for the period ending 31 July 2006 was included on his DD Form 214 for the period ending 15 May 2004.  In accordance with the applicable regulation formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 will be listed therein.

10.  As a result of another application submitted to the ABCMR by the applicant and his counsel, the Board recommended that the Separation Authority, Separation Code, Reentry Code, and Narrative Reason for Separation be corrected on his DD Form 214 for the period ending 31 July 2006.  There are several additional corrections that should be made to the DD Form 214 for that period of service, including the address of his Nearest Relative and his Home of 
Record at Time of Entry.  Therefore, the applicant's ARNG records and his Department of the Army records should be corrected to show the relief being granted.

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 the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

* Publishing the proper documentation (orders and/or DD Form 214) to show he was released from active duty on 1 October 2001 due to an Interstate Transfer from the MSARNG to the TXARNG
* Amending Orders 165-013 to show his TXARNG reporting date as 1 October 2001
* Amending Orders 228-1057 to show "reference Orders 252-1004 this Headquarters dated 9 September 2003"
* Amending Orders 214-1014 to show he was awarded the Army Good Conduct Medal (5th Award)

2.  The DD Form 214 for his period of service ending on 15 May 2004 should be amended by:

* Showing his Date Entered on Active Duty This Period as 2 October 2001
* Recalculating his Net Active Service This Period
* Recalculating his Total Prior Active Service
* Recalculating his Total Prior Inactive Service

3.  The DD Form 214 for his period of service ending on 31 July 2006 should be amended by:

* Showing his Date entered on Active Duty This Period as 19 May 2004
* Home of Record at Time of Entry:  Dallas TX
* Recalculating his Net Active Service This Period
* Recalculating his Total Prior Active Service
* Recalculating his Total Prior Inactive Service
* Showing he was awarded the Good Conduct Medal (5th Award)
* Showing his Nearest Relative Address as xx7 S Cedar St

4.  Once the above corrections have been accomplished, Orders 228-1049, Orders 228-1057, Orders 141-1012, Orders 183-1006, and any additional orders published as a result of these recommended corrections should be filed in his OMPF.

5.  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:

* Amending Orders 141-1012 to read "reference Orders 228-1040 this Headquarters dated 16 Aug 2002"
* Revoking Orders 092-1001
* Voiding DD Form 214 dated 15 May 2004
* Amending DA Form 2-1

6.  There is also insufficient evidence to warrant amending his DD Form 214 dated 31 July 2006 to show:

* Place of Entry into Active Duty:  Houston, TX
* Date Entered Active Duty This Periods:  1993-09-01
* Total Prior Active Service:  6 Years 4 Months and 13 Days
* Total Prior Inactive Service:  2 Years 7 Months and 18 Days
* Military Education:  "Administrative Specialist Phase I 2 WKS (1994) Basic NCO Course 5 WKS (1997) (Recruiter & Retention Course 5 WKS (2000))
* Mailing Address After Separation:  Austin TX




      __________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)                                         AR20090009608



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ABCMR Record of Proceedings (cont)                                         AR20090009608



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