IN THE CASE OF:	

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130010698 


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 revocation of the DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 5 July 2000 through 3 August 2000 and the issuance of a DD Form 220 (Active Duty Report) in its place.

2.  The applicant states after completion of Warrant Officer Candidate School (WOCS) on 3 August 2000 he was issued a DD Form 214 covering 29 days of active service.  The separation authority in item 25 (Separation Authority) is also in error as it shows the entry Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 16-1(A)(1) which means "Ordered to active duty as a commissioned officer or warrant officer in any branch of the Armed Forces."   This is incorrect because he did not continue on active duty.  He was ordered to active duty in the Michigan Army National Guard (MIARNG) as a traditional ARNG Soldier, not in an Active Guard Reserve (AGR) status under Title 32 of the U.S. Code.  Upon completion of WOCS , he was issued discharge orders (from enlisted status) and appointment orders (as a warrant officer) from the State under the authority of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26(a)(3) and NGR   600-101 (Warrant Officers - Federal Recognition and Related Personnel Actions), paragraph 2-5.  He was issued an appropriate National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) and a National Guard Bureau (NGB) Form 337 (Oaths of Office). 

3.  The applicant provides 

* Memorandum from the MIARNG G-1
* Email exchange
* Contested DD Form 214
* Active Duty for Training (ADT) orders
* NGB Form 22
* Appointment orders
* NGB Form 337

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 enlisted in the MIARNG on 1 February 1996 and he held military occupational specialty (MOS) 75H (Personnel Services Specialist). He served in a variety of positions. 

3.  On 31 May 2000, the MIARNG published Orders 152-075 ordering him to ADT from 5 July through 4 August 2000 for the purpose of attending Reserve Component WOCS.  The orders contained the additional instruction "This training is considered annual training" and the authority is listed as Title 32, U.S. Code, section 505. 

4.  He entered active duty on 5 July 2000 and completed the 4-week WOCS at Fort Rucker, AL.  He was honorably released from active duty on 3 August 2000. He was issued a DD Form 214 that shows he completed 29 days of active service.  It also shows in:

* Item 25 - AR 635-200, paragraph 16-1(A)(1)
* Item 26 (Separation Code) - KGM
* Item 28 (Narrative Reason for Separation) - Accept Commission or Warrant in the Army

5.  He was discharged from the MIARNG as an enlisted Soldier on 3 August 2000 and he was issued an NGB Form 22 that captured his ARNG service from 1 February 1996 to 3 August 2000.

6.  Meanwhile, while on active duty, on 28 July 2000, the MIARNG published Orders 210-030 appointing him the MIARNG as a WO of the Army effective 4 August 2000.

7.  He was appointed as a Reserve WO of the MIARNG and executed an oath of office on 4 August 2000.

8.  He provides a memorandum, dated 3 February 2013, from the Deputy Chief of Staff for Personnel, MIARNG, that sates the contested DD Form 214 was prepared by Fort Rucker, AL, upon the applicant's completion of WOCS.  This form was incorrectly prepared and is not in compliance with AR 635-5 (Separation Documents).  The MIARNG does not have the authority to revoke a DD Form 214 issued by an outside agency.  The official recommends the Board grant him relief. 

9.  An advisory opinion was obtained on 13 June 2013 from the NGB in the processing of this case.  An NGB official recommended approval of the applicant's request and stated:

	a.  The applicant requests that a DD Form 214 issued for a period of service of 29 days be revoked and replaced with a DD Form 220 covering the period of service 5 July to 3 August 2000 since the DD Form 214 was issued erroneously.  The NGB recommends approval.  The applicant's original request was sent back because no evidence existed that he tried to resolve the issue with the MIARNG. Documentation now exists stating the State is not authorized to revoke the DD Form 214.  

	b.  On 3 August 2000, the applicant graduated from WOCS and he was issued a DD Form 214 for 29 days of active service.  The Separation Authority on the DD Form 214, block 25, was incorrect in that it stated he was returning to Active Duty (AD); however, the applicant was not serving in any active status.  He was a traditional M-day Soldier in the MIARNG.  Upon returning to his State, he was issued discharge and appointment orders under authority of NGR 600-200 paragraph 8-26 (a)(3) and NGR 600-101, paragraph 2-5 and received the rank of W01.  He was issued the appropriate NGB Form 22 and NGB Form 337 by the MIARNG.

	c.  The applicant realized this error after notification from the Department of Veterans Affairs stating his benefits for disability were being recovered back to the date of the DD Form 214 because he was returned to AD at that time.  This, of course, is not the case and the resulting sense of urgency on behalf of the Soldier to correct this issue is understandable due to the financial implications on his family.  

	d.  The State concurs with the above recommendation.

10.  The applicant was provided with a copy of this advisory opinion but he did not respond within the allotted time. 

11.  AR 635-5 establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  A DD Form 214 will be prepared for each Soldier as indicated:

	a.  Active Army Soldiers on termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration of term of service), physical disability separation, or punitive discharge under the Uniform Code of Military Justice;

	b.  Reserve Component (RC) Soldiers completing 90 days or more of continuous ADT, Full-Time National Guard Duty, active duty for special work, temporary tours of active duty, or AGR service.  Also, RC Soldiers separated for cause or physical disability regardless of the length of time served on active duty;

	c.  ARNG and USAR Soldiers mobilized under Title 10, U.S. Code, sections 12301(a), 12302, or 12304, and ARNG Soldiers called into Federal service under Title 10, U.S. Code, chapter 15 or section 12406, regardless of length of mobilization, when transitioned from active duty.  A Soldier who reports to a mobilization station and is found unqualified for active duty will be excluded from this provision.  He or she will only receive a DD Form 220; and

	d.  RC Soldiers completing initial ADT that results in the award of an MOS even when the active duty period was less than 90 days.  This includes completion of advanced individual training under the ARNG of the United States Alternate Training Program or USAR Split Training Program.

12.  AR 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.   Chapter 16 covers 

selected changes in service obligations.  Paragraph 16-1 (Order to active duty as a commissioned or warrant officer) states Soldiers may be discharged for the purpose of being ordered to active duty as a commissioned or warrant officer in any branch of the Armed Forces or (2) being ordered to an AGR tour with the Army as a USAR commissioned or warrant officer.  Before such discharge, the separation authority must have documentary evidence from the proper authority.  The evidence must prove that the Soldier will be ordered to AD if discharged from his/her enlisted status.  Discharge will be effective the day preceding the date of entry on duty as a commissioned or warrant officer.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant entered ADT on 5 July 2000 and he completed the 4-week RC WOCS.  He was released from ADT on 3 August 2000 for the purpose of accepting a WO appointment in the ARNG.  He was issued a DD Form 214 that shows he completed 29 days of active service. 

2.  The issuance of a DD Form 214 was not warranted in his case.  He was neither awarded an MOS as a result of this period of active duty nor was he ordered to active duty as a WO in any branch of the Armed Forces.  Furthermore, this period of active duty was less than 90 days.

3.  As a result, the applicant's DD Form 214 should be voided and he should be issued a DD Form 220 instead.  

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 

voiding the DD Form 214 covering the active duty period from 5 July 2000 through 3 August 2000 and issuing him a DD Form 220 for this period instead. 



      _______ _   _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)                                         AR20130010698



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ABCMR Record of Proceedings (cont)                                         AR20130010698



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