IN THE CASE OF:
BOARD DATE: 24 October 2013
DOCKET NUMBER: AR20130003918
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 the Texas Army National Guard (TXARNG) orders directing his activation in support of Hurricane Katrina recovery operations be amended.
2. The applicant states:
a. The orders show the authority as Title 32, U. S. Code (USC), section 505. However, the authority should have been Title 32, USC, section 502(f) since the activation was in support of a federal mission, not a state mission.
b. He was not in a training status. He was in the Superdome in New Orleans saving lives. He received a Meritorious Service Medal for that service.
3. The applicant provides:
* Orders to active duty and amendments
* DA Form 638 (Recommendation for Award), dated 12 November 2005
* Department of Veterans Affairs (VA) letter to the applicant's Member of Congress, dated 31 July 2012
* letter from his Member of Congress, dated 1 August 2012
* VA letter to his Member of Congress, dated 16 August 2012
* TXARNG memorandum for record, dated 2 October 2012
* VA letter, dated 20 December 2012
CONSIDERATION OF EVIDENCE:
1. The applicant was a master sergeant/E-8 in the TXARNG.
2. The following orders are at issue:
a. 10 September 2005 Texas Military Forces Orders 253-114 ordered him to annual training for the period 30 August to 5 September 2005. The purpose listed is Hurricane Katrina Support. The authority on the orders shows, in part: Title 32, USC.
b. 21 September 2005 Texas Military Forces Orders 264-290, amend orders 253-114 to read he was ordered to Active Duty Special Work (ADSW) to Support Katrina. The authority shows, in part: "Subsec 505, Title 32 USC."
c. 27 September 2005 Texas Military Forces Orders 270-057 ordered him to ADSW for the period 6-24 September 2005. The purpose is shown as: "ADSW/Mission Tvl/Spt Recovery Ops Hurricane Katrina." The authority shows, in part: "Subsec 505 Title 32, USC."
d. 27 September 2005 Texas Military Forces Orders 270-162 ordered him to ADSW for the period 25 September to 31 October 2005. The purpose is shown as "ADSW/Mission Tvl/Spt Recovery Ops Hurricane Rita." The authority shows, in part: "Subsec 505 Title 32 USC."
e. 21 October 2005 Texas Military Forces Orders 294-355 amended Orders
270-162 to change the period to 25 September to 15 October 2005.
3. A DA Form 638 shows he was awarded the Meritorious Service Medal for the period 27 August to 1 November 2005. Item 21 (Proposed Citation) states he was recognized for his meritorious service in support of support of relief efforts for Hurricanes Katrina, Rita, and Wilma.
4. The correspondence between the VA and the congressman include:
a. A VA letter, dated 31 July 2012, explained the applicant was not eligible for benefits under the Post 9/11 GI Bill because he did not have 90 days of qualifying active duty service.
b. A VA letter, dated 16 August 2012, explained the applicant was not eligible for Post 9/11 GI Bill benefits because he was ordered to active duty for ADSW; however, ADSW does not meet the criteria listed for Title 32 service to qualify for the Post 9/11 GI Bill.
5. A 2 October 2012 Texas Military Forces, Joint Forces Headquarters, Adjutant General's Department, memorandum for record stating that the applicant was ordered to active duty in support of hurricane operations in support of a federal mission and the authority should have read section 502(f), USC. That organization no longer has the ability to amend those orders because they have been archived.
6. A 20 December 2012 VA letter to the applicant informing him that he did not meet the eligibility requirements because he did not have 90 days of Post 9/11 GI Bill qualifying service.
7. In the processing of this case, an advisory opinion was obtained on
22 April 2013 from the National Guard Bureau (NGB). The opining official recommended approval of the applicant's request and stated:
a. The authority shown on his activation orders was incorrect because Title 32, USC, section 505, is activation for training purposes, but section 502(f) includes activation for other duties.
b. All orders pertaining to the applicant's activation for Hurricane Katrina recovery operations should be amended.
8. On 30 July 2013, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.
A response was not received.
DISCUSSION AND CONCLUSIONS:
1. The applicant's orders show he was ordered to ADSW in support of hurricane recovery operations from 30 August to 15 October 2005. The authority listed in his orders shows section Title 32, USC, section 505.
2. The correct authority for ADSW in support of hurricane recovery operations is Title 32, USC, section 502(f).
3. All his ADSW orders for the period 30 August to 15 October 2005 should be amended to show the authority as Title 32, USC, section 502(f).
BOARD VOTE:
____X___ ____X___ ___X__ _ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Army National Guard and Department of the Army records of the individual concerned be corrected by amending his five September/October 2005 orders for the period 30 August to 15 October 2005 to eliminate the phrases "Special Work" and "ADSW" and to show the authority as section Title 32, U.S. Code, section 502(f).
_______ _ 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) AR20120022118
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ABCMR Record of Proceedings (cont) AR20130003918
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