IN THE CASE OF:
BOARD DATE: 8 December 2009
DOCKET NUMBER: AR20090011407
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 military records to show that his time spent in a patient status after termination of his active duty for training (ACDUTRA) was active military service.
2. The applicant states that he was injured while on ACDUTRA and was held in a patient status until 2 January 1974. He did not receive a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for his time in a patient status.
3. The applicant provides copies of his DD Form 4 (Enlistment Contract); DD Form 214; two DA Forms 2139 (Military Pay Voucher); Certification of Reserve Duty Pay; two letters from the Fort Devens Medical Department Activity, dated 3 December 1973 and 8 January 1974; discharge orders; DD Form 256A (Honorable Discharge Certificate); and DA Form 20 (Enlisted Qualification Record) in support of his application.
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. On 26 August 1971, the applicant enlisted in the United States Army Reserve for 6 years. He entered initial active duty for training (IADT) on 6 October 1971 and subsequently completed both basic combat training and advanced individual training as a clerk typist. He was released from IADT on 2 February 1972 and transferred to his Reserve unit.
3. The applicant attended ACDUTRA from 7 to 21 July 1973. During this period he sustained an injury.
4. In a letter, dated 3 December 1973, the applicant's Reserve unit was notified by the Fort Devens Medical Department Activity that he had been carried on the rolls of the hospital in a "convalescent patient" status for an injury sustained on 10 July 1973 while on ACDUTRA. This letter advised the applicant to report to the hospital for evaluation of his medical fitness for military service.
5. In a letter, dated 8 January 1974, the applicant's Reserve unit was notified by the Fort Devens Medical Department Activity that he was removed from a patient status and returned to duty with a medical profile effective 2 January 1974. His injury had been determined to have been in the line of duty and the proper authority had continued his pay and allowances through 2 January 1974. The applicant was ordered to report to the medical treatment facility in April 1974 for further evaluation of his medical profile.
6. Army Regulation 135-200 (Active Duty for Training of Individual Members), in effect at the time, provided that members who had incurred disease or injury while on ACDUTRA may, with their consent, remain in a patient status after termination of the ACDUTRA indicated in their orders. ACDUTRA orders would not be amended to extend the ACDUTRA period in such cases except when approved by Headquarters, Department of the Army. The period after completion of ACDUTRA was not considered to be in an active military status and the individual would not accrue leave or receive active duty retirement point credits during this period.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he should be issued a DD Form 214 for his time in a patient status after his injury while on ACDUTRA.
2. The governing provisions at the time clearly provided that time served in a patient status did not qualify as active military service. Therefore, issuance of a DD Form 214 for such service was not authorized.
3. In view of the above, the applicant's request should be denied.
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) AR20090011407
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ABCMR Record of Proceedings (cont) AR20090011407
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