IN THE CASE OF:
BOARD DATE: 15 April 2010
DOCKET NUMBER: AR20090016800
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 records to show he completed a DD Form 4 (Enlistment or Reenlistment Document) and DA Form 3540 (Certificate and Acknowledgment of U.S. Army Reserve Service Requirements and Methods of Fulfillment) reenlisting in the Individual Ready Reserve (IRR) for an indefinite period of time prior to his expiration term of service of 21 September 2005.
2. The applicant states he was told he was discharged [from the IRR after 19 years of service] due to an erroneous enlistment in 2005 but he was never notified that his reenlistment was erroneous or that he was being discharged.
3. The applicant provides an Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points).
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 applicants 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 applicants 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 military records show he enlisted in the U.S. Marine Corps on 27 September 1977 and completed 4 years and 3 days of active service.
3. The applicant enlisted in the Army National Guard on 12 May 1983. He was appointed as a second lieutenant on 26 October 1984 and was promoted to the rank of captain on 25 March 1992. He was discharged from the Army National Guard as an officer on 22 September 1993 and enlisted in the Army National Guard the following day for 6 years in the rank/grade of staff sergeant (SSG)/E-6. A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was released from the Army National Guard and transferred to the U.S. Army Reserve (USAR) Control Group (Standby), effective 24 May 1996 due to incompatible occupation. The applicant apparently reenlisted in the USAR for six years with a new ETS date of 21 September 2005. This document shows his military occupational specialty (MOS) as 11B (infantryman).
4. The applicant's records maintained in the interactive Personnel Electronic Records Management System (iPERMS) contain a DD Form 4/1 that shows in block 5 (Date of Enlistment/Reenlistment) the entry "050926" [26 September 2005]. His iPERMS also contain a DA Form 3540 that shows, by his signature, he acknowledged and understood his service obligation, methods of fulfillment, and satisfactory participation. This form was administered and signed by a commissioned officer on 16 September 2005.
5. The applicant's records in iPERMS currently show his expiration term of service (ETS) date as 21 September 2005.
6. AHRC-PAP-T Orders D-01-601639, dated 24 January 2006, show the applicant was discharged from the U.S. Army Reserve, effective 24 January 2006.
7. AHRC-PLM-O Orders M-08-601792R, dated 15 September 2006, revoked Orders M-08-601792 pertaining to order to active duty of the applicant.
8. In the processing of this case, on 3 February 2010, an advisory opinion was obtained from the U.S. Human Resources Command, St. Louis (HRC - STL). The HRC-STL official stated there were no records to indicate the applicant's discharge was based on a fraudulent enlistment. The official states that it appeared to be an ETS discharge based on the codes used for generating the discharge order.
9. Army Regulation 140-111 (USAR Reenlistment Program) states that except as indicated in paragraph 515 (antedating reenlistment) the date of reenlistment is the date upon which the oath of enlistment is administered. The date will be shown on the enlistment record (item 19f, DD Form 4/2).
DISCUSSION AND CONCLUSIONS:
1. The applicant's records in iPERMS show his ETS as 21 September 2005. However, it is reasonable to believe that without awareness of the discharge order, the presence of active duty orders generated after the ETS date may lead a person to suppose they still have a military status.
2. While it appears the date in block 5 of the applicant's DD Form 4/1 shows
26 September 2005, DA Form 3540 (Annex A to the DD Form 4/1) shows the oath was administered on 16 September 2005. It is not possible to ascertain with certainty the date next to the applicant's signature on this form; however, it appears that it is also intended to show 050916 (16 September 2005). As such, in the interest of equity and justice it would be appropriate to correct the applicant's records to show a valid reenlistment was completed on 16 September 2005 for an indefinite period with continued service in the Individual Ready Reserve (IRR).
3. Therefore, it would be appropriate to revoke AHRC-PAP-T Orders
D-01-601639, dated 24 January 2006, that discharged him from the USAR.
4. In view of the foregoing, the applicant is entitled to have his records corrected as shown below.
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 all Department of the Army records of the individual concerned be corrected by:
a. amending the date shown in block 5 of his DD Form 4/1 to show "20050916," thereby validating the reenlistment, and
b. revoking AHRC-PAP-T Orders D-01-601639, dated 24 January 2006.
________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) AR20090016800
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20090016800
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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