IN THE CASE OF:	  

		BOARD DATE:  1 May 2012

		DOCKET NUMBER:  AR20110020571 


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 (Certificate of Release or Discharge from Active Duty), ending on 5 October 2007, as follows:

* Item 11 (Primary Specialty) 
* Item 12a (Date Entered [Active Duty (AD)] This Period)
* Item 12d (Total Prior Active Service)
* Item 12e (Total Prior Inactive Service)
* Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized)
* Item 18 (Remarks)

2.  The applicant states:

* He had 3 different military occupational specialties (MOSs), but was only credited with one.  He has the supporting NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) and DD Form 214 for each MOS
* He entered on active duty on 13 June and served until August 2000.  His DD Form 214 does not include this period
* A DD Form 215 (Correction to DD Form 214) was submitted in June 2009 to correct items 12a, 12d and 12e, but his DD Form 214 remains incorrect
* He was awarded two Army Achievement Medals (AAM), but he is only being credited with one.  He has the supporting DA Forms 638 (Recommendation for Award) for each one
* The "Remarks" section of his DD Form 214 indicates that he is "Subject To AD Recall".  He is however no longer subject to recall.  He served for 8 years according to his NGB Form 22

3.  The applicant provides:

* DD Form 220 (Active Duty Report)
* Two DA Forms 638
* 2007 DD Form 214
* DD Form 215
* NGB Form 22

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 records show he enlisted in the U.S. Army Reserve (USAR) on 16 March 2000 for 8 years.  

3.  He provided a copy of a DD Form 220, dated 16 August 2000 which shows he was scheduled to enter AD with an effective date of 13 June 2000.  There is no other evidence in his record to show he entered AD on this date.

4.  He was ordered to AD training (ADT) and entered AD on 26 June 2001.  He completed training and was awarded MOS 12B (Combat Engineer).  He was released from AD (REFRAD) on 17 August 2001 and was transferred to a Reserve unit.  He was issued a DD Form 214 crediting him with completion of 1 month and 22 days of net active service.

5.  He enlisted in the Regular Army (RA) on 9 April 2002 for 3 years.  He completed training and he was awarded MOS 11B (Infantryman).  He served in Afghanistan from 16 December 2002 through 22 August 2003 and in Iraq from 10 January 2004 through 28 April 2004.
6.  He provided a copy of a DA Form 638, dated 14 October 2004, for award of the AAM for exceptionally meritorious service from 29 to 31 September 2004 awarded by Permanent Orders Number 337-23 on 2 December 2004.

7.  He also provided a copy of a DA Form 638, dated 14 December 2004, for award of the AAM for exceptionally meritorious service from 1 August 2001 to 11 February 2005.  The DA Form 638 does not indicate permanent orders number for this award.

8.  He was honorably REFRAD in pay grade E-4 on 8 April 2005, for completion of required active service.  He was issued a DD Form 214 showing in:

* Item 9 (Command To Which Transferred) - USAR Control Group (Reinforcement)
* Item 11 - 11B1O, Infantryman
* Item 12a - 9 April 2002
* Item 12b (Separation Date This Period) - 8 April 2005
* Item 12c (Net Active Service This Period) - 3 years
* Item 12d (Total Prior Active Service) - 1 month and 22 days.
* Item 12f (Foreign Service) - 11 months and 26 days
* Item 13 - Army Commendation Medal (2nd Award), AAM, National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Army Service Ribbon, Combat Infantryman Badge, and Parachutist Badge
* Item 18 - "Subject To AD Recall"

9.  He enlisted in the Utah Army National Guard (UTARNG) on 10 May 2006 for 1 year and 43 weeks.

10.  He was again ordered to ADT and entered AD on 10 June 2006.  He was honorably REFRAD on 5 October 2007, for completion of ADT, and was transferred to a Reserve unit.  He was issued a DD Form 214 showing in:

* Item 9 - Company A, 141st Military Intelligence Linguist Battalion
* Item 11 - 11B1O, Infantryman
* Item 12a - 9 April 2002
* Item 12b - 5 October 2007
* Item 12c - 1 year, 3 months, and 25 days
* Item 12d - 3 years, 1 month, and 22 days
* Item 12f - 11 months and 26 days
* Item 13 - list the same awards as the 2005 DD Form 214
* Item 18 - "Subject To AD Recall"
11.  On 20 March 2008, the UTARNG issued orders awarding him primary MOS 35M (Human Intelligence Collector) with an effective date of 15 March 2008.  

12.  He was discharged from the UTARNG on 9 May 2009 and issued an NGB Form 22.  He was issued orders assigning him to Individual Ready Reserve (IRR) on 9 May 2009.

13.  On 12 May 2009, he requested his military statutory obligation (MSO) be corrected from 14 March 2010 to 15 March 2008.

14.  On 7 August 2009, he was issued a DD Form 215 correcting his DD Form 214 ending on 5 October 2007 with the following:

* Item 12a - 10 June 2006
* Item 12d - 3 years, 3 months, and 28 days
* Item 12e - 2 years, 9 months, and 26 days

15.  Army Regulation 635-5 (Personnel Separations - 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 that for:

* Item 11, enter the title of all MOS and Area of Concentration (AOC) served for at least one year and include for each MOS/AOC the number of years and months served.  Basic training and advanced individual training will not be counted
* Item 12a, enter the beginning date of the continuous period of AD for issuance of this DD Form 214
* Item 12b, enter the transition date
* Item 12 c, enter the amount of service for the period covered by the DD Form 214
* Item 12d, enter total amount of prior active military service, less lost time
* Item 12e, enter the total amount of prior inactive service, less lost time
* Item 12f, enter the total amount of foreign service completed during the period covered by the DD Form 214
* Item 13, enter awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22
* Item 18, for a Soldier being transferred to the IRR (see Item 9 (Command To Which Transferred) enter "Subject To Active Duty Recall and/or Annual Screening."


DISCUSSION AND CONCLUSIONS:

1.  With respect to correction to the applicant's DD Form 214 ending on 5 October 2007 to show his other MOSs, the evidence of record shows:

   a.  He was awarded MOS 12B in 2001 and 11B in 2002.  Without evidence, it appears he did not serve on AD for at least one year in MOS 12B for its entry on the 2007 DD Form 214.  
   
   b.  He was awarded MOS 35M in March 2008, which occurred outside of the period covered by the 2007 DD Form 214.  The governing regulation mandates a listing of all MOSs awarded or held during the current period of service for at least one year (the PMOS being an exception).  Therefore, he is not entitled to listing these MOSs on his DD Form 214 ending on 5 October 2007.

2.  With respect to correction to items 12a, 12d, and 12e of his 2007 DD Form 214, the evidence of record shows he enlisted in the USAR on 16 March 2000 for 8 years.  He entered on ADT on 26 June 2001.  He was REFRAD on 17 August 2001 and was transferred to a Reserve unit.  He was issued a DD Form 214 for this period of service.  

3.  There is not sufficient evidence to show he served on ADT prior to 26 June 2001 and he was properly issued a DD Form 214 for his service from 26 June to 17 August 2001.

4.  He enlisted in the RA on 9 April 2002 for 3 years.  He was awarded MOS 11B. He was REFRAD on 8 April 2005 and was transferred to the USAR.  He was issued a DD Form 214 for this period of service.  He enlisted in the UTARNG on 10 May 2006.  He again entered on ADT on 10 June 2006.  He served in MOS 11B.  He was REFRAD on 5 October 2007 and was transferred to a Reserve unit.  He was issued a DD Form 214 that shows in:

* Item 11 - 11B, Infantryman
* Item 12a - 9 April 2002
* Item12d - 3 years, 1 month, and 22 days
* Item 12e - 1 year, 7 months, and 22 days
* Item 18 - "Subject To AD Recall"

5.  On 7 June 2009, he was issued a DD Form 215 correcting his DD Form 214 ending on 5 October 2007 to show:

* Item 12a - 10 June 2006
* Item 12d - 3 years, 3 months, and 28 days
* Item 12e - 2 years, 9 months, and 25 days

6.  In accordance with regulatory guidance, Item 12a of his DD Form 214 ending on 5 October 2007 will list the date he entered on AD, all time he served on AD, and the amount of prior active and inactive service.  He was issued a corrected DD Form 215 for this DD Form 214 properly showing the date and entered on AD and total amounts of active and inactive service.  Therefore, he is not entitled to a correction of items 12a, 12d, and 12e of his 2007 DD Form 214 to show he entered on active duty on any other date.  He has not shown error, injustice, or inequity for the relief he now requests.  

7.  With respect to correction to his 2007 DD Form 214 to show the AAM (2nd Award), the evidence of record shows he was awarded the AAM by permanent orders on 2 December 2004 and this award is listed on his 2005 and 2007 DD Forms 214.  He provided a copy of a DD Form 638 awarding him the AAM (2nd Award); however, the form does not list permanent orders number and an approval date for this award.  Therefore, he is not entitled to correction to his 2007 DD Form 214 to show award of the AAM (2nd Award).

8.  With respect to correction to his 2007 DD Form 214 for removal of the entry "Subject To AD Recall" from Item 18, the evidence shows at the time of his REFRAD on 5 October 2007 he had a MSO of 15 March 2008.  Therefore, he is not entitled to correction to Item 18 of his 2007 DD Form 214 by deleting this entry.

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)                                         AR20110020571





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