IN THE CASE OF:	

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090011854 


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 Item 18 (Remarks) of his DD Form 214 to show that he was mobilized under the involuntary provisions of section 12302 of Title 10 U.S. Code (10 U.S.C. 12302) instead of those of 10 U.S.C. 12304, typically associated with mobilization to active duty other than during war or national emergency.

2.  The applicant states, in effect, that his records should be amended due to the fact that his unit and its members were involuntarily mobilized under the provisions of 10 U.S.C. 12302 by Department of the Army orders.

3.  The applicant provides copies of a unit mobilization order and an individual mobilization order in support of this 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.  The applicant's record shows he is currently a member of the U.S. Army Reserve assigned to 1st Platoon of the 678th Postal Company located in Charlotte, North Carolina.  He was assigned to Detachment 2 of the 336th Adjutant General Postal Company during the period of time addressed in these proceedings.

3.  Headquarters, First United States Army, Fort Gillem, Georgia, Permanent Orders 169-2, dated 18 June 2002, mobilized Detachments 1 and 2 of the 336th Adjutant General Postal Company and involuntarily ordered unit personnel to active duty in support of Operation Enduring Freedom under the provisions of 10 U.S.C. 12302 effective 18 July 2002 for an initial period of up to 365 days.

4.  Headquarters, 81st Regional Support Command, Birmingham, Alabama, Orders Number M-192-0002, dated 11 July 2002, show the applicant was involuntarily ordered to active duty as a member of Detachment 2 of the 336th Adjutant General Postal Company under the authority of Headquarters, First United States Army, Orders 169-2, dated 18 June 2002, in support of Operation Enduring Freedom on 18 July 2002 for a period of 365 days.

5.  Headquarters, United States Infantry Center, Fort Benning, Georgia, Orders 076-2222, dated 17 March 2003, show the applicant was released from active duty, effective 29 March 2003.

6.  The applicant's DD Form 214 for the period ending 29 March 2003, shows he was ordered to active duty under the provisions of 10 U.S.C. 12304 in support of Operation Enduring Freedom and served for the period 18 July 2002 through 29 March 2003.  This form also shows the applicant served in the imminent danger pay area for Bosnia during the period 24 August 2002 through 15 March 2003.

7.  On 3 December 2009, an advisory opinion was rendered by the Chief, Compensation and Entitlements Division of the Office of the Deputy Chief of Staff G-1.  The Chief, Compensation and Entitlements Division recommended that the application be denied.  He states that 10 U.S.C. 12304 is used for mobilization of Selected Reserve and certain Individual Ready Reserve members when ordered to active duty other than during war or national emergency.  This authority was used for mobilization/deployments to Bosnia and Kosovo until the beginning of calendar year 2005.  The Assistant Secretary of the Army (Manpower and Reserve Affairs) used the authority under 10 U.S.C. 12302 from January 2005 forward.  Therefore, the applicant's DD Form 214 issued in 2003 is not in error.

8.  On 10 December 2009, the applicant was provided a copy of the advisory opinion and afforded an opportunity to submit a reply; he did not respond.

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers upon retirement, discharge, release from active duty service, or control of the Active Army.  Specifically, it states for a Reserve Soldier ordered to active duty and deployed to a foreign country, "ORDERED TO ACTIVE DUTY IN SUPPORT OF (OPERATION NAME) PER 10 U.S.C. (applicable section)" will be entered in Item 18.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the advisory opinion rendered by Chief, Compensation and Entitlements Division, the applicant's contention that his DD Form 214 should be amended to show he was involuntarily mobilized under the provisions 10 U.S.C. 12302 was carefully considered and determined to have merit.

2.  Permanent orders mobilized the applicant's unit and its personnel to active duty in support of Operation Enduring Freedom under the provisions of 10 U.S.C 12302 effective 18 July 2002.  Additionally, the applicant's individual mobilization orders cited these orders as the authority for his mobilization.

3.  Army Regulation 635-5 prescribes that item 18 of a DD Form 214 for a Reserve Soldier ordered to active duty and deployed to a foreign country will show "ORDERED TO ACTIVE DUTY IN SUPPORT OF (OPERATION NAME) PER 10 U.S.C. (applicable section)."

4.  Based on the foregoing, it would be appropriate in this case to amend Item 18 of the applicant's DD Form 214 to show that he was involuntarily mobilized under the provisions of 10 U.S.C. 12302.

BOARD VOTE:

___X____  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that Item 18 of the applicant's DD Form 214 for the period ending 29 March 2003 be amended by:

	a.  deleting the entry "//ORDERED TO ACTIVE DUTY IN SUPPORT OF OPERATION ENDURING FREEDOM IAW 10 U.S.C. 12304//"

	b.  adding the entry "//ORDERED TO ACTIVE DUTY IN SUPPORT OF OPERATION ENDURING FREEDOM IAW 10 U.S.C. 12302//"



      _______ _   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)                                         AR20090011854





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ABCMR Record of Proceedings (cont)                                         AR20090011854



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