IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100013078 


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 Item 12b (Separation Date) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 May 2006 be corrected to read 2006 07 19 (2006 July 19) instead of 
2006 05 31 (2006 May 31), thereby voiding his debt.

2.  The applicant states he was diagnosed with an umbilical hernia on 5 May 2006 while he was on active duty.  His surgery was initially scheduled for May 2006 and it was rescheduled for 12 June 2006 at the General Leonard Wood Army Community Hospital, Fort Leonard Wood, MO.  He was told by his unit that medical hold paperwork had been processed so he would continue to be paid while under a doctor's care.

3.  The applicant provides copies of his:

* DD Form 214
* Operation Report for primary repair of an umbilical hernia (three copies)
* 21 pages from his service medical records for treatment between
11 December 2004 and 16 May 2006

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 enlisted in the Georgia Army National Guard on 26 January 1994 for a period of 8 years.  He completed basic combat training and advanced individual training and he was awarded the military occupational specialty of 11B (Infantryman).

3.  State of Georgia, Department of Defense, Military Division, Office of the Adjutant General, Atlanta, GA:

* Orders 337-679, dated 2 December 2004 - ordered the applicant to active duty not to exceed 665 days effective 6 December 2004
* Orders 205-431, dated 24 July 2006 - amended Orders 337-679 to change his period of active duty to 6 December 2004 - 19 July 2006

4.  Headquarters, 3rd Infantry Division and Fort Stewart, Fort Stewart, GA, 
Orders 112-0187, dated 22 April 2006, released the applicant from active duty, not by reason of physical disability effective 31 May 2006.

5.  The applicant's DD Form 214 shows in:

* item 12a (Date Entered AD This Period) 2004 12 06
* item 12b 2006 05 31
* Item 12c (Net Active Service This Period) 0001 05 25 (1 year, 5 months, and 25 days)

6.  The DD Form 214 also shows he had no time lost.  

7.  In the processing of this case, an advisory opinion, dated 12 January 2011, was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB), Arlington, VA.  The NGB recommends approval of the applicant's request.  The NGB states the applicant appeared to be on convalescent leave for hernia surgery through 12 July 2006.  His orders were then amended to show he was extended on active duty until 19 July 2006.

8.  The applicant was provided a copy of the above opinion and given 30 days to submit matters in rebuttal; however, the applicant has not responded. 
9.  Army Regulation 635-5 (Separation Documents) states the beginning date of the continuous period of active duty for which the DD Form 214 is being issued is to be entered in item 12a of the DD Form 214 and the date of separation is to be entered in item 12b.  The net service for the period shown is computed by subtracting item 12a from item 12b and then deducting any lost time and non-creditable service after the Soldier's expiration of term of service. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his separation date was 19 July 2006.

2.  NGB states he was on convalescent leave for his surgery until 12 July 2006 and his state orders were then amended.  The amendment to his orders to active duty extended his active duty service period to 19 July 2006.  

3.  Therefore, the date in item 12b of his DD Form 214 should be corrected to show 2006 07 19.  Headquarters, 3rd Infantry Division and Fort Stewart 
Orders 112-0187, dated 22 April 2006, should be amended to show the effective date of his release from active duty as 19 July 2006.

4.  Recomputation of the applicant’s service based on the above correction for the period covered by the DD Form 214 shows his net service is 1 year, 
7 months, and 14 days.  Therefore, the entry in item 12c should be 0001 07 14
(1 year, 7 months, and 14 days).

5.  The Defense Finance and Accounting Service (DFAS) should then review the applicant's records to ensure any debt that may have been incurred as a result of the error in his separation date is eliminated.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to:

* delete the entries in item 12b and item 12c
* add to item 12b 2006 07 19 
* add to item 12c - 0001 07 14

2.  The Board also recommends that Headquarters, 3rd Infantry Division, Fort Stewart, GA, Orders 112-0187, dated 22 April 2006, be amended to show the applicant's effective date of release from active duty was 19 July 2006.

3.  The Board recommends DFAS review the applicant's records based on the above corrections and eliminate any debt that may have been incurred as a result of the error in the applicant's separation date.




      _______ _   _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)                                         AR20100013078



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ABCMR Record of Proceedings (cont)                                         AR20100013078



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