IN THE CASE OF:
BOARD DATE: 21 December 2010
DOCKET NUMBER: AR20100016544
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, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect that he completed his first full term of service.
2. The applicant states, in effect, that because his records show that he was discharged 1 month before completing his first full term of service he is unable to use the Montgomery G.I. Bill (MGIB) benefits that he paid for. He goes on to state that he was discharged for unsatisfactory performance because he failed his Army Physical Fitness Test (APFT) when he was only 1 month from completing his enlistment. However, he has since served 18 months of active duty and he has served in Iraq. He desires to have his records correctly so that he may use his benefits.
3. The applicant provides copies of his two DD Form 214s.
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 enlisted in the Regular Army on 23 June 1993 for a period of 3 years. He completed his basic training at Fort Jackson, South Carolina and his advanced individual training at Fort Bliss, Texas before being transferred to Fort Carson, Colorado for his first and only duty assignment. He was advanced to the pay grade of E-4 on 1 September 1995.
3. The facts and circumstances surrounding his administrative discharge are not present in the available records. However, his records contain a duly authenticated DD Form 214 which shows that on 6 May 1996 he was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance. He had served 2 years, 10 months and 14 days of total active service.
4. On 13 July 2004, he enlisted in the Georgia Army National Guard (GAARNG) and on 6 December 2004 he was ordered to active duty in support of Operation Iraqi Freedom. He deployed to Iraq/Kuwait on 17 May 2005 and on 26 June 2005 the applicant reenlisted for a period of 6 years and a $15,000 Selected Reserve Incentive Program (SRIP) bonus. He departed Iraq on 19 April 2006 and on 1 June 2006 he was honorably REFRAD due to completion of required service. He was subsequently promoted to the rank of sergeant in the GAARNG.
5. On 16 March 2009, he was discharged under honorable conditions from the GAARNG in the pay grade of E-2 due to unsatisfactory participation.
6. Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214. It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individuals service as of the date of release or discharge from active duty. Changes that occur subsequent to the date of separation are not authorized to be entered on the DD Form 214 retroactively unless the event occurred during the period covered by the DD Form 214.i
7. The MGIB is a benefits program designed to provide education benefits to eligible veterans and their families and is administered by the Department of Veterans Affairs (VA).
DISCUSSION AND CONCLUSIONS:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
3. The applicants contentions have been noted; however, his DD Form 214 correctly reflects his service as of the date of his REFRAD and the desire to obtain benefits is not a sufficient basis to alter a properly-prepared Army record.
4. In view of the foregoing, there appears to be no basis to grant the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X____ ____X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ _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.
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ABCMR Record of Proceedings (cont) AR20100016544
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ABCMR Record of Proceedings (cont) AR20100016544
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