BOARD DATE:	8 December 2011 

		DOCKET NUMBER:  AR 20110012035


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 he be issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period he was mobilized during Operation Iraqi Freedom.

2.  The applicant states he did not receive a DD Form 214 due to an administrative error and he needs it for veteran's benefits.  

3.  The applicant provides no additional documentation.

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 Tennessee Army National Guard (TNARNG) on 19 August 1997.  

3.  His records contain the following orders:

     a.  Joint Force Headquarters, TNARNG, Orders 338-351, dated 25 August 2004, ordering him to active duty in support of Operation Iraqi Freedom.  He was ordered to report to his home station on 28 August 2004, and to the mobilization station, Camp Shelby, MI, on 31 August 2004, for a period not to exceed 545 days.  The authority for these orders is shown as Title 10, U.S. Code, Section 12302(a); 

    b.  Mobilization Center Camp Shelby, Orders 265-12, dated 21 September 2004, releasing him from active duty effective 22 September 2004.

    c.  Mobilization Center Camp Shelby, Orders 265-13, dated 21 September 2004, ordering him to proceed to his home station on 22 September 2004. 

    d.  Joint Force Headquarters, TNARNG, Orders 271-027, dated 27 September 2004, amending orders 238-351 to show the period of active duty end date was 
22 September 2004.

4.  His records also contain the following DD Forms 220 (Active Duty Report) dated:

    a.  1 July 2004, showing he was on active duty from 17 June 2004 to 1 July 2004 (15 days).  He acknowledged in item 15 (Statement of Physical Condition) that he underwent a complete medical examination for military service on or about 2 March 2002.  He further acknowledges he was treated by Doctor P___ during the period 23 June to 28 June 2004 for knee and ankle pain.  He checked the block to show he believed he was medically qualified to perform satisfactorily military service.

    b.  21 September 2004, showing the applicant served on active duty from 
28 August to 22 September 2004 (25 days).   He acknowledges in item 15 that he underwent a complete medical examination for military service on or about
14 October 2001 and he had not been treated by clinics, physicians, healers, or other practitioners.  He checked the block to acknowledge he believed he was medically qualified to perform satisfactorily military service.



5.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's release from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  

6.  Chapter 2 of the above regulation contains guidance on the preparation of the
DD Form 214.  It states, in pertinent part, that a DD Form 214 will be prepared for Army National Guard (ARNG) of the U.S. and U.S. Army Reserve Soldiers mobilized under sections 12301(a), 12302, or 12304, title 10, U.S. Code and ARNG Soldiers called into Federal service under chapter 15, or section 12406, title 10, U.S. Code, regardless of length of mobilization, when transitioned from active duty.  A Soldier who reports to a mobilization station and is found unqualified for active duty will be excluded from this provision.  The Soldier will only receive a DD Form 220.

7.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  It states in paragraph 2-9, "The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence."

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was ordered to active duty under the provisions of Title 10, U.S.C. 12302(a) in support of Operation Iraqi Freedom. He was on active duty from 28 August to 22 September 2004 (25 Days).

2.  The DD Form 220, dated 1 July 2004, shows he underwent a complete medical examination on 2 March 2002, and he acknowledged he had been treated for knee and ankle pain.  

3.  The DD Form 220, dated 21 September 2004, shows he underwent a complete medical examination on 14 October 2001 and reflects no treatment.  Although there is no available evidence to show the applicant was found unqualified for active duty after reporting to the mobilization station the shortened period of mobilization and his failure to list a previously reported medical examination and treatment suggests he was sent back to his home station early due to physical issues.

4.  In the absence of evidence to the contrary, it must be presumed that the applicant was issued a DD Form 220 to document his active duty service, not a DD Form 214.  The applicant has offered insufficient evidence to rebut the presumption.
5.  In view of the forgoing, his request should be denied.

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)                                         AR20100020053



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ABCMR Record of Proceedings (cont)                                         AR20110012035



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