IN THE CASE OF:	  

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090013534 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

	a.  item 4a (Grade, Rate, or Rank) and item 4b (Pay Grade) from second lieutenant (2LT)/O-1 to first lieutenant (1LT)/O-2;

	b.  item 11 (Primary Specialty) to add military occupational specialty (MOS) 46Q (Journalist);

	c.  item 12d (Total Prior Active Service) to show prior active service from 11 February 2002 to 22 April 2004; and

	d.  he requests a personal hearing.

2.  The applicant states that he was promoted to 1LT/O-2 prior to his discharge.  He also states that he has prior active duty and another MOS, neither of which is reflected on his DD Form 214.  He adds that he is a 100-percent disabled veteran and went to get his identification card which said he was a 2LT/O-1.

3.  The applicant provides a copy of his DD Form 214, dated 1 February 2004; a copy of Orders 353-008 issued by the U.S. Total Army Personnel Command, Alexandria, VA, dated 19 December 2003; a copy of his DD Form 220 (Active Duty Report), dated 19 Aril 1999; a copy of his National Guard Bureau Form 23B (Army National Guard Retirement Points History Statement), dated 9 May 2002; and a copy of Orders 003-617 issued by the West Virginia Army National Guard (WVARNG), dated 5 January 2000, 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.  The applicant's records show that he enlisted in the WVARNG in the rank/grade of specialist/E-4 on 19 January 1999.  He subsequently entered active duty for training (ADT) on 19 February 1999 and completed basic combat training.  He was released from ADT on 22 April 1999 and was issued a DD Form 220 that captured his 71 days of creditable active service.

3.  On 22 April 1999, the applicant was assigned to the 196th Public Affairs Detachment, Charleston, WV, and was subsequently attached to the 197th Regiment, WVARNG, for completion of officer candidate school.  He was relieved from attachment on 2 August 1999, reverted to his enlisted status, and was awarded MOS 46Q on 1 December 1999.

4.  The applicant's records also show he completed the Reserve Officers' Training Corps course and was honorably discharged from the Army National Guard on 18 May 2002 for the purpose of accepting a commission with concurrent call to active duty.  He was subsequently appointed as an infantry 2LT in the U.S. Army Reserve, executed an oath of office, and entered active duty on 19 May 2002.

5.  On 19 December 2003, the U.S. Total Army Personnel Command, Alexandria, VA, published Orders 353-008 announcing the applicant's promotion to 1LT/O-2 with an effective date and date of rank of 1 December 2003.

6.  On 29 January 2004, subsequent to a medical evaluation board/physical evaluation board, the U.S. Army Garrison, Fort Belvoir, VA, published Orders 029-0002 directing the applicant's discharge from active duty effective 1 February 2003 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability that existed prior to service.  The orders show his rank as 2LT.

7.  On 1 February 2004, the applicant was honorably discharged in accordance with paragraph 4-24b(4) of Army Regulation 635-40 by reason of physical disability that existed prior to service.  The DD Form 214 he was issued shows the following entries:

	a.  item 4a and item 4b show "2LT" and "O-1";

	b.  item 11 shows "11A, Infantry, 1 year, 8 months";

	c.  item 12d shows "0000  00  00"; and

	d.  item 12h (Effective Date of Pay Grade) shows "2002  05  19."

8.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214 and states, in pertinent part, that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Officer Record Brief.  Item 11 shows the titles of all MOS or area of concentration (AOC) served for at least 1 year and include for each MOS/AOC the number of years and months served.  For time determination, 16 days or more count as a month.  Basic combat training and advanced individual training are not counted.  Item 12 shows the record of service.  Extreme care is used when completing this item since post-service benefits, final pay, retirement credit, and so forth are based on this information.  Item 12d, obtained from previously-issued DD Forms 214, shows the total amount of prior active military service less lost time, if any (If not applicable, enter, "0000  00  00").  Additionally, item 12h, obtained from the most recent promotion order or reduction instrument, shows the effective date of promotion to the current pay grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his correct rank/grade, prior active service, and enlisted MOS.

2.  The evidence of record shows that the applicant was promoted to 1LT/O-2 on 1 December 2003 and held this rank/grade at the time of his discharge on 1 February 2004.  Therefore, he is entitled to correction of his DD Form 214 to show the correct rank/grade as that of 1LT/O-2 and the correct effective date of pay grade as that of 1 December 2003.

3.  With respect to his MOS, the applicant served as a commissioned officer during the period covered by the DD Form 214.  He neither held nor served in any enlisted MOS, 46Q or otherwise, during this period.  The fact that he previously held an enlisted MOS, albeit without any evidence of formal training, does not entitle him to the listing of this enlisted MOS on his officer DD Form 214.

4.  With respect to his prior service, the evidence of record shows he previously completed basic combat training from 19 February 1999 to 22 April 1999 and was issued a DD Form 220 that captured his 71 days of creditable active service. 
By regulation, item 12d shows prior service and is obtained from previously-issued DD Forms 214.  The applicant was not issued a DD Form 214 since his period of active duty was less than 90 days.  Therefore, this period is not entered on his DD Form 214.  The DD Form 220 remains the correct form to document that period of active service.

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 Department of the Army records of the individual concerned be corrected by deleting the entries "2LT," "O-1," and "2002  05  19" from items 4a, 4b, and 12h of his DD Form 214 and adding the entries "1LT," "O-2," and "2003  12  01" respectively.


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 adding to his DD Form 214 his enlisted MOS and prior active duty for training.



      ____________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)                                         AR20090013534



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ABCMR Record of Proceedings (cont)                                         AR20090013534



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