BOARD DATE: 28 June 2011
DOCKET NUMBER: AR20100030486
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 (Report of Separation from Active Duty) to show he was a member of the Regular Army (RA) instead of the U.S. Army Reserve.
2. The applicant states he was involuntarily ordered to active duty from 4 March to 28 September 1975. He adds that because his DD Form 214 shows "ARMY USAR" in block 5 the Department of Veterans Affairs (VA) will not let him enroll in VA health care since they believe he was never on active duty (taken to mean RA). He asks that this record be corrected so he can enroll in VA health care.
3. The applicant provides his DD Form 214 for the period ending 28 September 1975; an NGB Form 22 (National Guard Bureau Report of Separation and Record of Service); a DD Form 220 (Active Duty Report); Headquarters, U.S. Army Reception Station Special Orders Number 121 Extract; Headquarters, III Corps and Fort Hood Special Orders Number 192 Extract; and Headquarters, Fifth U.S. Army Letter Orders Number E-01-95.
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. His military records show he enlisted in the Army National Guard (ARNG) on 11 August 1972. He completed initial entry training and was awarded the military occupational specialty of light weapons infantryman.
3. His NGB Form 22 shows he attended active duty for training during the period 8 November 1972 to 23 March 1973. He was discharged from the ARNG on 3 March 1975 due to being ordered to active duty per Special Orders 42, dated 28 February 1975, effective 3 March 1975.
4. Headquarters, Fifth U.S. Army Letter Orders Number E-01-95, dated 24 January 1975, subject: Order to Active Duty - Reservist (Involuntary) show he was ordered to active duty effective 4 March 1975 for a period of 18 months and 27 days.
5. His DD Form 214 for the period ending 28 September 1975 shows he entered active duty on 4 March 1975. He was discharged from active duty on 28 September 1975. He completed a total of 3 months and 20 days of creditable active service for this period of active duty. This form shows he completed 5 months and 2 days of prior active service and 2 years, 1 month, and 21 days of prior inactive service with 97 days of lost time. The highest rank/grade he attained was private first class/E-3.
6. Item 5 (Department, Component and Branch or Class) of his DD Form 214 contains the entry "ARMY USAR" indicating he was a member of the U.S. Army Reserve on active duty.
7. Headquarters, III Corps and Fort Hood Special Orders Number 192 Extract, dated 25 September 1975, show he was discharged under honorable conditions on 28 September 1975.
8. Army Regulation 635-5 (Separation Documents) states a DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty service. It provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant was discharged as a member of the ARNG but remained a member of the Reserve of the Army. Orders show he was involuntarily ordered to active duty as a Reservist effective 4 March 1975 for a period of 18 months and 27 days. There is no evidence he ever enlisted in the RA. As such, there is no error in item 5 of the DD Form 214 in question.
2. In view of the foregoing, there is no basis for granting the applicant's 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.
ABCMR Record of Proceedings (cont) AR20100030486
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ABCMR Record of Proceedings (cont) AR20100030486
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