IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011581 


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 National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) as follows:

	a.  to show his full name with the suffix "III" instead of "II,"

	b.  to show his date of birth (DOB) as "29 September 1960" instead of "20 September 1960," and

	c.  to show his rank/pay grade as "SP4[specialist four]/E4" instead of "PV2[private]/E-2."

2.  The applicant states that the incorrect entries are the result of typographical errors.

3.  The applicant provides a copy of his NGB Form 22 effective 1 September 1982 and a copy of his State driver's license in support of his request.

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.  Prior to his enlistment in the Ohio Army National Guard (ARNG), the applicant submitted a DD Form 1966 (Application for Enlistment - Armed Forces of the United States).  Item 1 (Name (Name (Last, first, middle (maiden, if any), Jr., Sr., etc.)) of this form contains the suffix "III," item 11 (Date of Birth) contains the entry "29 September 1960," and item 47 (Enlistment Options (Grade/Rate)) contains the entry "E-1."  He authenticated this form by placing his signature using the suffix "III."

3.  The applicant's records show he enlisted in the Ohio ARNG for a period of 6 years on 22 January 1978.  Item 1 (Name (Last, First, Middle, Jr., Sr., etc.)) of his DD Form 4 (Enlistment or Reenlistment Document) contains the suffix "III," item 4 (Grade) contains the entry "E-1," and item 7 (Date of Birth) contains the entry "20 September 1960."  He authenticated this form by placing his signature in the appropriate block using the suffix "III."

5.  The applicant's records also show he was ordered to active duty for training (ADT) on 14 June 1979, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 63B (Power Generator and Wheeled Vehicle Mechanic).  He was honorably released from ADT to the control of his ARNG unit on 8 August 1979.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows the following entries:

	a.  item 1 (Last Name - First Name - Middle Name) contains the suffix "III,"

	b.  item 4 (Date of Birth) contains the entry "60  09  20," and

	c.  items 6a (Grade, Rate, or Rank) and 6b (Pay Grade) contain the entries "PV2" and "E-2."

6.  On 4 August 1980, the applicant completed a Veterans Administration (VA) Form 29-8286 (Servicemen's Group Life Insurance Election).  This form listed his name with the suffix "III" and his father's name (as a principal beneficiary) with the suffix "II."  Additionally, he authenticated this form by placing his signature in the appropriate place using the suffix "III."

7.  On 5 October 1980, Headquarters, 37th Signal Company, Ohio ARNG, published Orders 7-1 converting the applicant's MOS to 76C (Equipment Records and Parts Specialist).  The orders listed the applicant's name with the suffix "III."

8.  The applicant's DA Form 2-1 (Personnel Qualification Record) prepared on 10 January 1981 listed the applicant's full name with the suffix "II."  Additionally, item 18 (Appointments and Reductions) of this form shows he was promoted to private (PV2)/E-2 on 16 January 1979, private first class (PFC)/E-3 on 1 December 1979, and SP4/E-4 on 3 November 1980.  This item further shows he was reduced to PFC/E-3 effective 1 January 1982.

9.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his records contain a copy of Orders 169-15, issued by the Ohio ARNG on 1 September 1982.  The orders listed his name with the suffix "III" and show the following:

	a.  He was ordered reduced from PFC/E-3 to PV2/E-2 effective 1 September 1982 in accordance with paragraph 6-35c of National Guard Regulation 600-200 (Enlisted Personnel Management) and paragraph 8-10b of Army Regulation 
135-178 (Separation of Enlisted Personnel) by reason of misconduct.

	b.  He was ordered discharged from the ARNG effective 1 September 1982 and reassigned to the U.S. Army Reserve Control Group (Reinforcement) in accordance with paragraph 7-10t of National Guard Regulation 600-200 and chapter 7 of Army Regulation 135-178.

10.  The NGB Form 22 he was issued shows he was discharged from the ARNG on 1 September 1982 for misconduct.  Item 1 (Last Name - First Name - Middle Name) of this form contains the suffix "II," item 4 (Date of Birth) contains the entry "60  09  20," and items 6a (Grade) and 6b (Pay Grade) contain the entries "PV2" and "E-2."

11.  National Guard Regulation 600-200 prescribes policies and procedures for enlistment, reenlistment, administrative instructions, classifications, transfers and attachments, voluntary active duty, promotions, and discharges and separations of ARNG members.  Paragraph 6-15 of the version in effect at the time states that commanders who have the authority to promote enlisted personnel also have the authority to reduce personnel.  Reduction of enlisted personnel will be announced in orders published by the reduction authority.  Orders will cite the specific reason for reduction, such as inefficiency or misconduct.

12.  Chapter 7 of National Guard Regulation 600-200 prescribes procedures for the separation of enlisted personnel from the ARNG.  Paragraph 7-8 of the regulation in effect at the time states, in pertinent part, that the State Adjutant General is responsible for making a continuous and willful absence determination.  Furthermore, a notification of discharge may be either actual or constructive.  Actual notice involves personal delivery of the discharge certificate to the individual.  A constructive notice is accomplished when actual delivery cannot be accomplished due to the absence of the individual being discharged.  When personal delivery cannot be accomplished, the NGB Form 22 will be mailed to the individual's last known address.

13.  Chapter 8 of National Guard Regulation 600-200 provides for the preparation and distribution of the NGB Form 22.  This form is prepared for every Soldier being discharged from the ARNG or released from the custody and control of the military except when a Soldier is accomplishing an interstate transfer or the Soldier dies.  Items 6a and 6b show the Soldier's grade and rank at the time of separation.

14.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG and USAR enlisted Soldiers for a variety of reasons.  Chapter 7 of the regulation in effect at the time governed separation for misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his NGB Form 22 should be corrected to show the correct suffix with his name, the correct DOB, and the correct rank/grade.

2.  With respect to the suffix associated with the applicant's full name, the evidence of record shows the applicant used the suffix "III" at the time he submitted his application for enlistment and at the time he executed his enlistment in the ARNG.  The suffix "III" is shown on various personnel documents throughout his military service.  He authenticated several other forms using the suffix "III."  It appears that his NGB Form 22 erroneously listed the suffix "II" instead of "III."  Therefore, the applicant is entitled to correction of his NGB Form 22 to show the correct suffix "III" with his name.

3.  With respect to the applicant's DOB, although the applicant listed his DOB as "29 September 1960" on his application for enlistment, he listed the DOB as "20 September 1960" on his actual enlistment contract.  This DOB is consistent with that shown on his DD Form 214 and other personnel documents in his service records.

4.  The Army has an interest in maintaining the integrity of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the applicant's DOB in this case.  Nevertheless, a copy of this decisional document will be filed in his service records.  This should serve to clarify any questions or confusion regarding the different DOBs and adequately document his DOB in his record.

5.  With respect to the applicant's grade, the applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains a copy of orders directing his reduction from PFC/E-3 to PV2/E-2 effective 1 September 1982 for misconduct.  Additionally, his records contain a copy of his discharge orders listing his rank/grade at the time of his discharge as PV2/E-2.  There is no evidence that he was promoted again to PFC/E-3 or SP4/E-4 prior to his discharge.  Therefore, his NGB Form 22 correctly shows his rank/grade.

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 State Army National Guard and Department of the Army records of the individual concerned be corrected by deleting from item 1 of his NGB Form 22 the entry "II" and adding the entry "III."


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 his DOB and rank/grade.



      _______ _   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)                                         AR20090011581



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ABCMR Record of Proceedings (cont)                                         AR20090011581



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