IN THE CASE OF:
BOARD DATE: 21 June 2011
DOCKET NUMBER: AR20100029206
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 to be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 16 October 2002 to July 2003.
2. The applicant states:
* he was never provided a DD Form 214 for his active duty service during this period
* he needs a DD Form 214 to receive his Post-9/11 GI Bill benefits from the Department of Veterans Affairs
3. The applicant provides:
* DA Form 67-9 (Officer Evaluation Report) covering the period 16 October 2002 through 12 April 2003
* U.S. Army Reserve (USAR) discharge orders, dated 18 August 2003
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. Having prior active enlisted service in the Regular Army and inactive service in the USAR, the applicant was appointed as a second lieutenant in the USAR on 3 June 1990. He was promoted to captain on 1 April 1999.
3. He was ordered to active duty on 26 October 2001 in support of Operation Noble Eagle and he was released from active duty on 5 April 2002. His DD Form 214 for the period ending 5 April 2002 shows he completed 5 months and 10 days of creditable active service.
4. He provided an OER covering the period 16 October 2002 through 12 April 2003.
5. His retirement points detail statement shows he was ordered to active duty for training from 16 October 2002 through 12 April 2003 and from 14 April 2003 through 15 July 2003. By separate correspondence, the applicant explained the one day break (on 13 April 2003) was for the USAR to extend his active duty for training.
6. His official military personnel file (OMPF) does not contain a DD Form 214 covering the period 16 October 2002 to 15 July 2003.
7. On 22 August 2003, he was honorably discharged from the USAR.
8. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states a DD Form 214 will be prepared for all personnel after completing 90 days or more of continuous active duty for training, full-time training duty, or active duty support, and after completing initial active duty for training which resulted in the award of an military occupational specialty, even though the active duty was less than 90 days.
9. Army Regulation 635-5 also states a DD Form 214 will not be prepared to cover a period of service for which a previous DD Form 214 has been issued. It further directs that a DD Form 214 will not be issued to replace record copies or DD Forms 214 lost by Soldiers. If no DD Form 214 is available, issue a statement of service.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should have been issued a DD Form 214 for the period 16 October 2002 to 15 July 2003 to show his period of active duty for training.
2. It appears he was ordered to active duty for training from 16 October 2002 through 12 April 2003 and from 14 April 2003 through 15 July 2003 as evidenced by his retirement points detail statement. Although there is no DD Form 214 of record for this period on file in his OMPF, administrative regularity presumes that a DD Form 214 was issued. In accordance with the governing regulation, reissuance of the DD Form 214 is not authorized. However, it would be appropriate to issue him two statements of service for the periods 16 October 2002 to 12 April 2003 and from 14 April 2003 to 15 July 2003.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
__X_____ __X_____ ___X____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by preparing and issuing to the applicant statements of service for the periods 16 October 2002 to 12 April 2003 and from 14 April 2003 to 5 July 2003.
2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to issuance of a DD Form 214 for the period 16 October 2002 to 15 July 2003.
_______ _ 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) AR20100029206
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ABCMR Record of Proceedings (cont) AR20100029206
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