IN THE CASE OF:
BOARD DATE: 28 April 2011
DOCKET NUMBER: AR20100026970
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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 March 1970 to show he was ordered to active duty by an executive order issued by the President.
2. The applicant states that his veteran's benefits are affected by the fact that his DD Form 214 does not reflect that he was ordered to active duty as a result of the Postal Strike under an executive order issued by the President.
3. The applicant provides no supporting documents.
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 was serving in the New York Army National Guard (NYARNG). His records contains a DA Form 20 (Enlisted Qualification Record) that shows in item 38 (Record of Assignments) he was ordered to active duty as directed by the President in Brooklyn, NY on 24 Match 1970 pursuant to Letter Order (LO) Number 3-152, issued by Headquarters, First U.S. Army, dated 24 March 1970.
3. On 30 March 1970, the applicant was honorably released from active duty (REFRAD) and he was reverted to his NYARNG unit. He had served 7 days of active service. His DD Form 214 issued at the time of his REFRAD shows in block 17 (Current Active Service Other Than Induction) he was called to active service by LO 3-132 First US Army 24 March 1970.
4. On 23 March 1970, Executive Order Number 11519 was issued under Presidential Proclamation 3972 issued by President Nixon which authorized the Secretary of Defense to call into active service any or all units of the Army National Guard and of the Air National Guard as deemed appropriate in an attempt to distribute the mail and break the U.S. Postal strike of 1970.
5. Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation and issuance of the DD Form 214. It provides, in pertinent part, that ARNG and U.S. Army Reserve (USAR) Soldiers mobilized under Title 10, U.S. Code, sections 12301(a), 12302, or 12304, and ARNG Soldiers called into active Federal service under chapter 15, or Title 10, U.S. Code, section 12406, regardless of length of mobilization when transitioned from active duty, will be issued a DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his DD Form 214 should be corrected to show he was ordered to active service pursuant to a letter order that was issued as a result of Executive Order 11519 under Presidential Proclamation 3972.
2. The ABCMR does not grant requests for correction of records solely for the purpose of making the applicant eligible for veteran's benefits. However, although there is no provision in Army Regulation 635-5 to include the information requested by the applicant, there is no harm in doing so by adding to block 30 of his DD Form 214 the entry Ordered to active duty under Executive Order 11519 and Presidential Proclamation 3972, dated 23 March 1970.
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 adding to item 30 of his DD Form 214 for the period ending 30 March 1970 the entry Ordered to active duty under Executive Order 11519 and Presidential Proclamation 3972, dated 23 March 1970.
__________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) AR20100026970
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