IN THE CASE OF:
BOARD DATE: 19 July 2012
DOCKET NUMBER: AR20120000500
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 item 16 (Terminal Date of Reserve/ UMT&S [Universal Military Training and Service] Obligation) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) because he was found not physically qualified for transfer to the Ready Reserve.
2. The applicant states that Army records show he was found not qualified for transfer to the Ready Reserve. Therefore, the terminal date of reserve obligation shown on his DD Form 214 should be 20 November 1968.
3. The applicant provides copies of an application for compensation from the Veterans Administration (VA), page 3 of his DA Form 20 (Enlisted Qualification Record), his DD Form 214, discharge orders, and a veterans' services letter.
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. A DD Form 47 (Record of Induction) shows the applicant was inducted into the Army of the United States on 6 December 1966 for a period of 24 months.
3. An Acknowledgment of Service Obligation shows the applicant acknowledged that he was required to serve in a Reserve Component for a period which, when added to his active duty service, totaled six years.
4. A Standard Form (SF) 88 (Report of Medical Examination), dated 5 November 1968, prepared on the occasion of the applicant's separation examination, shows in item 77 (Examinee) that the examining physician found the applicant qualified for separation.
5. A DA Form 2376 (Notification to State Adjutant's General - Release from Active Duty of Obligated Reservist), dated 20 November 1968, shows that an assistant adjutant at Fort Bragg, North Carolina, advised the Adjutant General, State of Missouri, that the applicant was being released from active duty (REFRAD) on 5 December 1968. It also shows the notification constituted a conditional release of the applicant for his enlistment in the Army National Guard (ARNG) within 60 days and that a copy of the SF 88 that was accomplished in connection with the applicant's REFRAD was attached to the form.
6. A DA Form 664 (Serviceman's Statement Concerning Application for Compensation from the VA), dated 20 November 1968, shows the applicant acknowledged being processed for separation from active military service, he was advised that he was entitled to file an application for compensation from the VA, and he decided not to file an application at that time. It also shows the applicant placed his signature on the document.
7. Headquarters, Personnel Center, U.S. Army Garrison Troop Command, Fort Bragg, North Carolina, Special Orders Number 244, dated 3 December 1968, show the applicant was REFRAD, effective 5 December 1968, not by reason of physical disability. The orders also show he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) and that he had a UMT&S Act obligation of 6 years.
8. The applicant's DD Form 214 shows he entered active duty on 6 December 1966, was honorably REFRAD on 5 December 1968, and transferred to the USAR Control Group (Annual Training). He completed 2 years of net active service this period. It also shows in:
a. item 16: "5 DEC 71"; and
b. item 32 (Signature of Person Being Transferred or Discharged) the applicant placed his signature on the document.
9. The applicant's DA Form 20 shows in item 38 (Record of Assignments) that he was REFRAD on 5 December 1968 and transferred to the USAR Control Group (Annual Training).
10. Office of The Adjutant General, USAR Personnel and Administration Center, St. Louis, Missouri, Letter Orders Number 03-1051953, dated 9 March 1973, honorably discharged the applicant from the USAR (Standby Reserve) effective
1 March 1973.
11. A review of the applicant's military service records shows that on 19 October 1997, 2 December 1998, and 27 June 2000, the applicant requested copies of his military personnel and medical records. On all three occasions, the applicant was informed that his medical records "have been lent to the Department of VA." He was provided VA contact information and advised to provide his VA claim number with his inquiry/request for records.
12. In support of his application, the applicant provides a copy of a letter from Mr. Chuck E. J----, Veterans Services Supervisor, dated 1 September 2011. It shows he reviewed the documents the applicant provided (that were the same as those the applicant now provides to this Board). He suggested that the applicant submit a request to the National Personnel Records Center for copies of all of his records.
13. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's REFRAD, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. The instructions for item 16 state, if the individual incurred a service obligation under Title 10, U.S. Code, subsection 651a (formerly the UMT&S Act), and is being returned to State control as a member of the ARNG or is being transferred or returned to the Army Reserve for the purpose of satisfying the obligation, enter the date (day, month, and year) such service obligation should terminate.
DISCUSSION AND CONCLUSIONS:
1. Records show the applicant was inducted into the Army of the United States on 6 December 1966 and he acknowledged that he was required to serve in a Reserve Component for a period which, when added to his active duty service, totaled six years (i.e., until 5 December 1972).
2. On 5 November 1968, the applicant underwent his separation examination and the examining physician found him qualified for separation (emphasis added). There is no evidence of record that shows the applicant was found medically/physically unfit for military service. Accordingly, orders were issued directing the applicant's REFRAD, not by reason of physical disability (emphasis added), effective 5 December 1968.
3. Records show the Adjutant General, State of Missouri, was notified that the applicant was being administratively REFRAD on 5 December 1968 for possible enlistment in the ARNG. However, there is no evidence the applicant enlisted in the ARNG.
4. The evidence of record shows that the applicant elected not to submit an application for compensation from the VA during his separation processing. It also shows that, subsequent to his separation from the Army, the applicant was informed on three occasions that his military medical records had been lent to the VA and that he should contact the VA for copies of those records. However, the applicant provided no military medical records in support of his application.
5. Item 16 of the applicant's DD Form 214 shows "5 December 1971"; however, his terminal date of obligation was actually "5 December 1972."
a. There is no evidence that the applicant was found unfit for military service.
b. Thus, he is not entitled to correction of item 16 to read 20 November 1968.
6. It is noted that the date in item 16 is in error in that the year should read "1972" vice "1971"; however, records show he served beyond his MSO.
a. Letter orders discharged the applicant from the USAR on 1 March 1973.
b. Thus, it is concluded that the error in item 16 is harmless and no action is necessary to correct it to read "5 December 1972."
7. 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) AR20120000500
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ABCMR Record of Proceedings (cont) AR20120000500
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