IN THE CASE OF:
BOARD DATE: 26 October 2010
DOCKET NUMBER: AR20100011684
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 that item 6 (Reserve Obligation Termination Date) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) effective 1 February 2007 be corrected.
2. The applicant states his Reserve Obligation Termination Date is incorrect.
3. The applicant provides his Enlisted Record Brief, enlistment contracts, and a copy of his DD Form 214 in support of his 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 record shows he initially enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for 8 years on 7 November 2000. On 15 November 2000, he was discharged from the DEP and enlisted in the Regular Army (RA) for 3 years on 16 November 2000.
3. On 1 February 2007, he was honorably released from active duty in the rank of sergeant for the purpose of accepting a commission. The DD Form 214 he was issued at the time listed his Reserve Obligation Termination Date as 1 February 2012 in item 6.
4. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) defines Army National Guard (ARNG) of the United States and USAR service obligations. It prescribes policies and procedures governing the various types of service obligations and participation requirements. Chapter 2 contains guidance on service obligations and paragraph 2-1 defines the statutory obligation. It states that the statutory military service obligation (MSO) is incurred on initial entry into the Armed Forces, whether by induction, enlistment, or appointment. For all Soldiers who enter on and after 1 June 1984, the MSO is 8 years. The statutory obligation can be terminated by the Army prior to its fulfillment. Separation due to discharge, dismissal, or being dropped from the rolls of the Army terminates a Soldier's statutory obligation.
5. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. Chapter 2 contains guidance on preparation of the DD Form 214. The instructions for completing item 6 state, the MSO starts on the date of initial enlistment or appointment in the RA, ARNG, or USAR, to include the DEP.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests that his Reserve Military Service Obligation Termination Date be corrected on his DD Form 214.
2. By regulation, the MSO for Soldiers who entered on and after 1 June 1984 is 8 years and this date starts from date of initial enlistment or appointment in the RA, ARNG, or USAR, to include the DEP. The evidence of record confirms he initially enlisted in the DEP on 7 November 2000, which established his statutory MSO as 6 November 2008. Therefore, it would be appropriate to correct item 6 of his DD Form 214 effective 1 February 2007 accordingly.
BOARD VOTE:
____X___ ____X___ ___X____ GRANT FULL
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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 amending item 6 of his DD Form 214 effective 1 February 2007 by deleting the current entry and replacing it with the entry "20081106."
_____________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) AR20100011684
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ABCMR Record of Proceedings (cont) AR20100011684
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