IN THE CASE OF:
BOARD DATE: 1 May 2012
DOCKET NUMBER: AR20110018285
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) for the period ending 19 April 1979 to show he was a member of the Regular Army (RA).
2. He states he served in an active duty status from 26 June 1978 through
19 April 1979, and his DD Form 214 for the period shows he was a member of the U.S. Army Reserve (USAR). He was a member of the RA during this period. The error has hampered his application for benefits through the Department of Veterans Affairs.
3. He provides his DD Form 214.
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. On 18 March 1976, the applicant enlisted in the New York Army National Guard (NYARNG) and as a Reserve of the Army for a period of 6 years. During his enlistment processing, he signed an Enlistment Agreement acknowledging, in part, that if he failed to attend the prescribed number of unit training assemblies without having been excused by proper authority he could be ordered to active duty for 24 months, less any period of active duty or active duty for training he previously performed.
3. On 9 May 1978, Headquarters, First United States Army, Fort Meade, MD, issued Orders 89-6 releasing him from his then-current Reserve Component (RC) assignment and ordering him to active duty for a period of 19 months and 20 days with a reporting date of 26 June 1978. The authority for the orders was Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) and Title 10, U.S. Code, Section 673a.
4. Effective 25 June 1978, he was honorably discharged from the NYARNG. The NGB Form 22 (Report of Separation and Record of Service) issued at that time shows in item 8b (Authority and Reason) he was involuntarily ordered to active duty under the provisions of Army Regulation 135-91.
5. His record shows he served on active duty from 26 June 1978 through 19 April 1979, when he was discharged under honorable conditions. His DD Form 214 shows he completed 9 months and 5 days of net active service during the period covered by the form. Item 5 (Department, Component and Branch or Class) shows he was a member of the USAR at the time of discharge.
6. The version of Army Regulation 135-91 in effect at the time provided that enlisted RC members with statutory service obligations whose participation was unsatisfactory could be ordered to active duty for 24 months, less any period of active duty or active duty for training previously performed.
DISCUSSION AND CONCLUSIONS:
1. The available records show the applicant was discharged from the NYARNG on 25 June 1978 and involuntarily ordered to active duty for unsatisfactory participation.
2. His discharge from the NYARNG did not discharge him from the Reserve of the Army. He was ordered to active duty as a Reserve of the Army. To be a member of the RA he would have had to enlist in that component and there is no evidence he did so. His DD Form 214 properly shows he was discharged as a member of the USAR.
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) AR20110018285
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ABCMR Record of Proceedings (cont) AR20110018285
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