BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090020238 


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 record to show he served until April 1989 and completed his service obligation.  He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his date of birth (DOB) is 19 January 1964.

2.  The applicant states he served in the Army National Guard from April 1983 to what he believed to be June 1989.  According to the limited records he was able to retrieve, he was discharged honorably in November 1988.  His obligation was until April 1989 and he is certain he completed his service obligation.  He would like to be issued a discharge to reflect this.  He further states his discharge date makes him ineligible for a Department of Veterans Affairs (VA) home loan by 
5 months.

3.  The applicant provides:

* copies of his DD Form 214 and DA Form 2-1 (Personnel Qualification Record)
* Orders D-04-211367, U.S. Army Reserve Personnel Center, dated 7 April 1992
* National Guard Bureau (NGB) Form 23 (Retirement Credits Record)





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.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows, on 14 April 1983, the applicant enlisted in the Oregon Army National Guard and as a Reserve of the U.S. Army with membership in the U.S. Army National Guard for a period of 6 years.  This document shows his DOB as 19 January 1964.

3.  A DD Form 214 in the applicant's record shows he was trained in and awarded military occupational specialty 91B (Medical Specialist).  This document shows his DOB as "640109."

4.  A Certificate of Baptism and Confirmation in the applicant's record shows his DOB as 19 January 1964.  

5.  Orders 13-1, Headquarters, 3d Squadron, 116th Armored Cavalry, Oregon Army National Guard attached the applicant to Troop L, 3d Squadron, 116th Armored Cavalry effective 2 June 1983.

6.  Orders 91-16, Military Department, State of Oregon, dated 9 May 1985, transferred the applicant to the Nevada Army National Guard.  

7.  On 24 March 1986, the applicant extended his enlistment as a member of the Nevada Army National Guard for 6 years.  Upon execution of this extension, he was contracted to serve through 13 April 1992.  

8.  Orders 130-9, Office of the Adjutant General, State of Nevada Military Department, dated 14 July 1987, transferred the applicant to the Oregon Army National Guard effective 7 July 1987. 

9.  An AGO OR Form 16 (Request for Discharge - Enlisted) shows on 
22 September 1988 the applicant's immediate commander in the Oregon Army National Guard requested the applicant's discharge and assignment to the Individual Ready Reserve (IRR) for failure to report to a gaining state.  

10.  An AGO 189 (BN/SQDN Retention Review Board Actions and Recommendations, Manageable Loss) shows the applicant requested an interstate transfer to Susanville, CA in May 1988 and was given an NGB Form 22-5-R (Addendum to DD Form 4 - Approval and Acceptance by Service Representative for Interstate Transfer in the Army National Guard) with instructions to report to a unit [in California] as soon as possible.  This document further shows the applicant failed to contact his new unit or old unit to request transfer to the ING [Inactive National Guard].  On 18 October 1988, a board recommended the applicant be discharged. 

11.  An NGB Form 22 (Report of Separation and Record of Service) shows on 
21 November 1988 the applicant was separated from the Oregon Army National Guard and assigned to the IRR.  Item 23 (Authority and Reason) shows the applicant was transferred to the IRR under the provisions of National Guard Regulation 600-200, paragraph 8-27x, as an interstate transfer who failed to report to the gaining state.

12.  The applicant's NGB Form 22 shows his DOB as "64 01 19."

13.  Orders D-04-211367, U.S. Army Reserve Personnel Center, dated 7 April 1992, honorably discharged the applicant from the IRR effective 13 April 1992.

14.  The version of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) in effect at the time states personnel incur two types of service obligations:  a 6-year statutory service obligation upon initial entry into the Armed Forces and a contractual obligation incurred by signing a contract to serve on active duty or in a Reserve Component status or both.  The contractual obligation may run concurrently with the statutory obligation or it may extend beyond the statutory obligation.  The regulation also states enlisted members who are discharged from the Army National Guard but not the Reserve of the Army before completing their statutory or contractual service obligation will be transferred to the U.S. Army Reserve for the remaining period of the obligation and required to participate in appropriate training.



15.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It states the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of discharge from active duty.  

DISCUSSION AND CONCLUSIONS:

1.  With regard to the applicant's request for correction of his record to show he fulfilled his service obligation, careful examination of the available evidence shows the applicant completed his service obligation, which is properly documented in his record.  The evidence of record supports the applicant's request for correction of his DD Form 214 to show his DOB is 19 January 1964.  

2.  The DD Form 214 in the applicant's record is the sole document showing his DOB is 9 January 1964.  All other evidence of record shows the applicant's DOB is 19 January 1964.  He is entitled to correction of his DD Form 214 to show 
19 January 1964 as his DOB.

3.  When the applicant enlisted in the Oregon Army National Guard on 14 April 1983, he incurred a contractual obligation to serve as an active member of the Army National Guard for 3 years and a statutory obligation to serve as a Reserve of the United States Army for 6 years.  In 1986, he extended by 6 years his contractual obligation to serve as an active member of the Army National Guard.  This extension obligated him to serve through 13 April 1992.  

4.  The applicant's statutory 6-year service obligation expired on 13 April 1989.  He was not discharged on that date because he had not completed his contractual obligation.  He was honorably discharged from the IRR on 13 April 1992 after completing his contractual service obligation.  A DD Form 214 is only issued for completion of a period of active Federal service.  Orders D-04-211367, U.S. Army Reserve Personnel Center, is the official documentation of his honorable discharge from the IRR and completion of his service obligation.  

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.  deleting from item 5 of his DD Form 214 the entry 640109 and

	b.  adding to item 5 of his DD Form 214 the entry 640119.  




      _______ _   _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)                                         AR20090020238



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ABCMR Record of Proceedings (cont)                                         AR20090020238



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