IN THE CASE OF:	  

		BOARD DATE:  5 April 2012

		DOCKET NUMBER:  AR20110019611 


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 change of his characterization of his service from other than honorable to honorable and issuance of a corrected National Archives and Records Administration (NA) Form 13038 (Certification of Military Service).

2.  The applicant states he believes his other than honorable characterization of service listed on the NA Form 13038 he was issued on 4 October 2010 is incorrect because it is inconsistent with his continued service in the U.S. Army Reserve (USAR) and receiving an Honorable Discharge Certificate based on his honorable discharge on 30 November 1962.

3.  The applicant provides his NA Form 13038 and a DD Form 256A (Honorable Discharge Certificate).

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's military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  This case is being considered using reconstructed records which primarily consists of the NA Form 13038 and 
DD Form 256A provided by the applicant and a DA Form 2139 (Military Pay Voucher) in the applicant's NPRC file.

3.  The applicant’s NA Form 13038 shows he served on active duty from 
7 December 1956 through 3 December 1959.  It further shows for:

* "Service was terminated by" the entry Other Than honorable Discharge
* "Last Grade, Rank, or Rating" the entry Private

4.  The DD form 256A the applicant was issued on 30 November 1962 shows he was honorably discharged from the USAR in the rank/grade of specialist four (SP4)/E-4.

5.  A DA Form 2139 for the period 1 November to 3 December 1959 contained in the applicant's NPRC file, which is identified as his final separation pay voucher, shows he was paid as an E-4.  It further shows the authority for his separation as Army Regulation 635-205, paragraph 7, SPN (Special Program Number) 411, that indicated he was separated for the convenience of the Government by reason of early separation of overseas returnee.

6.  Army Regulation 635-205, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government. Paragraph 7 of, in effect at the time, provided for the separation of enlisted personnel who were returning from overseas with less than 3 months remaining before the expiration of terms of enlistments or periods for which ordered to active duty.  

7.  The Army personnel separations regulation in effect at the time of the applicant’s release from active duty also would have required the applicant to be reduced to the lowest enlisted grade and discharged (not transferred to the USAR) in conjunction with receiving an other than honorable conditions discharge.



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct his NA Form 13038 to show his character of service was honorable has been carefully considered and found to have partial merit.  Separation regulations in effect at the time would have required the applicant to be reduced to the lowest enlisted grade and to have been discharged and not transferred to the USAR in conjunction with receiving an other than honorable conditions discharge.

2.  Given the applicant’s final separation pay voucher confirms he was paid as a SP4/E-4, and the DD Form 256A provided by the applicant confirms he was transferred to the USAR upon his release from active duty (REFRAD) and he was ultimately honorably discharged from the USAR in the rank/grade of SP4/
E-4, it is reasonable to conclude the characterization of service and rank listed on the NA Form 13038 issued to the applicant in 2010 is in error.  Therefore, it would be appropriate to correct this document accordingly.  However, as the form is not a Department of the Army or Department of Defense form this Board has no authority to issue a corrected NA Form 13038.  The applicant may wish to contact the National Personnel Records Center, National Archives and Records Administration, and request they issue a new NA Form 13038 based upon this Record of Proceedings.  However, the Army has no jurisdiction over their policies.

3.  The evidence of record confirms the applicant was separated on 3 December 1959, under the provisions of Army Regulation 635-205, paragraph 7, which provided for the early separation of members returning from overseas with less than 3 months until their expiration of term of service.

4.  In view of the foregoing, it would be appropriate at this time to correct the applicant's reconstructed record as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X ___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 providing an appropriate document to correct his NA Form 13038, dated
4 October 2010, by:

	a.  deleting from the item “Service was terminated by” the current entry and replacing it with the entry "Honorable," and

	b.  deleting from the item “Last Grade, Rank, or Rate” the current entry and replacing it with the entry “Specialist Four (SP4)/E-4.”

2.  The Board further determined that the evidence presented was 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 issuing a corrected NA Form 13038.  




      _______ _   _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)                                         AR20110019611



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ABCMR Record of Proceedings (cont)                                         AR20110019611



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