IN THE CASE OF:	  

		BOARD DATE:  8 April 2014

		DOCKET NUMBER:  AR20130013002 


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 records to show, in effect:

* he was injured at Fort Dix, NJ and received medical treatment on 15 July 1989
* the separation date on his 1990 DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect a date in 1991
* pay for active duty during November and December 1990

2.  The applicant states the date of his separation from active duty (AD) should be changed from 17 December 1990 to the date he was actually last paid in 1991 or to 16 October 1991 when his discharge document was corrected.  He states:

   a.  He was injured when he was bitten by a snake while digging a foxhole during a field training exercise on or about 15 July 1989 at Fort Dix, NJ.  He received treatment at Walson Army Hospital and the matter should be recorded in his military service records.  However, he has never received a report of medical treatment.

   b.  That, in accordance with Title 10, Chapter 59, section 1168(a), a member of an armed force may not be discharged or released from active duty (REFRAD) until his discharge certificate or certificate of REFRAD, respectively, and his final pay are ready for delivery to him.

   c.  He served on active duty during Operation Desert Shield/Storm (ODS) and his DD Form 214 and/or National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) was/were issued in December 1991.  In addition, Defense Finance and Accounting Service (DFAS) records (i.e., his Leave and Earnings Statements (LESs)) indicate he was not paid for numerous AD days during November and December 1990.  He adds that he received a hardship discharge as a result of a request by his mother.  A date that he entered in his personal diary indicates the separation date of 22 December 1990 is inaccurate.  

   d.  The Department of Veterans Affairs (VA) denied his VA home loan certificate based on insufficient service, even though his DD Form 214 states he completed the period of his activation during a foreign war and that he is entitled to all benefits available.  He questions the periods of service and/or creditable AD service shown on his separation/discharge documents.

3.  The applicant provides copies of two DFAS letters, LESs covering the period August 1988 through January 1991, two DD Forms 214, an NGB Form 22, and an NGB Form 22A (Correction to 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 enlisted in the Army National Guard (ARNG) of the United States (ARNGUS) and Louisiana ARNG (LAARNG) on 1 August 1988 for a period of 8 years.

3.  Military Entrance Processing Station, Houston, TX, Orders 152-17, dated 
1 August 1988, ordered the applicant to initial active duty for training (IADT) on 31 May 1989 for a period of 20 weeks or until completion of basic and advanced individual training.

4.  A DD Form 214 show the applicant entered active duty this period on 31 May 1989, he was relieved from active duty training (ADT) on 17 October 1989 with uncharacterized service based on completion of the period of ADT, and transferred to a LAARNG unit.  Item 12 (Record of Service), block c (Net Active Service this Period), shows he completed 4 months and 16 days of net active service this period.

5.  On 20 November 1990, the applicant wrote letters to Senator John B-----, 
U.S. Senator, and the Honorable Jimmy H----, Member of U.S. Congress.  He indicated he was with a unit in the LAARNG that was on call-up for mobilization and he requested assistance with obtaining "a hardship exemption" from the LAARNG.

6.  A DA Form 4187 (Personnel Action) shows the applicant was advanced to private first class (E-3) effective 30 November 1990.

7.  On 2 and 3 December 1990, Mr. A.M. S-----, Jr., The Adjutant General, LAARNG, advised the senator and congressman, respectively, that the applicant had been mobilized for ODS, he must report to his mobilization station, and his application for discharge must be submitted to the station commander.

8.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Record of Assignments) that he entered AD in support of ODS on
30 November 1990 and he was REFRAD to revert to ARNGUS status on
17 December 1990.

9.  A DD Form 214 shows the applicant was ordered to AD on 30 November 1990 in support of ODS, honorably REFRAD on 17 December 1990 based on expiration term of service, and transferred to an LAARNG unit.  It also shows in:

	a.  item 12, block c, that he completed 18 days of net active service this period; and

	b.  item 18 (Remarks), in pertinent part, "Individual completed period for which ordered to active duty for purpose of post service benefits and entitlements."

10.  LAARNG, Office of The Adjutant General, New Orleans, LA, Orders Number 003-029, dated 3 January 1991, honorably discharged the applicant from the ARNG and as a Reserve of the Army effective 21 December 1990.



11.  An NGB Form 22 shows the applicant enlisted in the LAARNG on 1 August 1988 and he was honorably discharged from the ARNG and as a Reserve of the Army on 21 December 1990 based on dependency or hardship affecting the applicant's immediate family.  It also shows in:

   a.  item 9 (Command To Which Transferred):  Headquarters and Headquarters Company, 3rd Battalion, 156th Infantry, Lake Charles, LA  70601;

	b.  item 10 (Record of Service), block a (Net Active Service this Period), that he completed 2 years, 4 months, and 21 days of net service; and

   c.  item 18 (Remarks):
* IADT from 31 May 1989 through 17 October 1989
* AD ODS:  30 November 1990 through 17 December 1990

12.  An NGB Form 22A, issued on 16 October 1991, in pertinent part, corrected the applicant's NGB Form 22 to show:

* item 5a (Rank):  PFC, 30 November 1990
* item 9:  Not Applicable

13.  A review of the applicant's available military personnel records failed to show any evidence he sustained an injury in July 1989 or a record of medical treatment for such injury.

14.  The applicant provided the following documents in support of his application:

   a.  copies of two letters, dated 31 May 2013 and 2 July 2013, that show DFAS provided the Honorable Mary L. L-------, U.S. Senator, copies of the applicant's available pay records from the period August 1988 through January 1991.

   b.  LESs covering the period August 1988 through January 1991 that show, in pertinent part, the following information:

   Pay Period				Pay Status
   August 1988				No Drill Performance
September 1988			Unit Training (UT) =  5 (16 - 18 September 1988)
October 1988			UT = 4 (29 - 30 October 1988)
November 1988			UT = 5 (18 - 20 November 1988)
December 1988			UT = 4 (3 - 4 December 1988)
January 1989			UT = 4 (21 - 22 January 1989)
February 1989			UT = 5 (24 - 26 February 1989)
March 1989				UT = 4 (18 - 19 March 1989)
April 1989				UT = 5 (14 - 16 April 1989)
May 1989					No Drill Performance
June 1989				No Drill Performance
June 1989				Basic Pay (31 May 1989 - 30 June 1989) - IADT
July 1989					No Drill Performance
July 1989					Basic Pay (1 - 31 July 1989) - IADT
August 1989				No Drill Performance
August 1989				Basic Pay (1 - 31 August 1989) - IADT
September 1989			No Drill Performance
September 1989			Basic Pay (1 - 30 September 1989) - IADT
October 1989			No Drill Performance
October 1989			[LES for IADT not provided]
November 1989			UT = 4 (18 - 19 November 1989)
December 1989			UT = 4 (2 - 3 December 1989)
January 1990			UT = 4 (6 - 7 January 1990)
February 1990			UT = 4 (10 - 11 February 1990)
March 1990				UT = 7 (3 - 4 and 30 - 31 March 1990)
April 1990				UT = 7 (1 and 27 - 29 April 1990)
May 1990					No Drill Performance
June 1990				UT = 4 (23 - 24 June 1990)
July 1990					UT = 4 (14 - 15 July 1990)
August 1990				No Drill Performance
September 1990			UT = 5 (7 - 9 September 1990)
October 1990			UT = 5 (26 - 28 October 1990)
November 1990			UT = 4 (17 - 18 November 1990)
December 1990			No Drill Performance
December 1990			No Pay (Removed from AD, 17 December 1990)
   January 1991			No Drill Performance
   January 1991			No Pay (Removed from AD, 17 December 1990)

15.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the
DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.

16.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was injured and received medical treatment on or about 15 July 1989, REFRAD in 1991, discharged from the LAARNG on 16 October 1991, and pay for AD service during November and December 1990.

2.  The sincerity of the applicant's contention that he was bitten by a snake while digging a foxhole during a field training exercise on or about 15 July 1989 at Fort Dix, NJ, is not in dispute.  However, there is no evidence of record and the applicant provides insufficient evidence to substantiate his contention.  In this regard, the ABCMR is not an investigative agency.  Thus, there is an insufficient evidentiary basis for correcting the applicant's military records in this instance.

3.  Records show the applicant served on active duty, as follows:

* IADT from 31 May 1989 through 17 October 1989
* AD for ODS from 30 November 1990 through 17 December 1990

4.  A computation of the two periods of AD service shows the following:

	1989  10  17		date of relief from IADT
	- 1989  05  31		date ordered to IADT
	=     00  04  16
	+ _                1		day inclusive
	=     00  04  17		net AD service this period (IADT)

	1990  12  17		date REFRAD (ODS)
	- 1990  11  30		date ordered to AD (ODS)
	=    00  00  17
	+                   1		inclusive day
	=     00  00  18		net AD service this period (ODS)




	a.  Additionally, the computation of the total AD service for these two periods show the following:

	00  04  17		IADT
	+     00  00  18		AD (ODS)
	=     00  04  35 		or 5 months and 5 days of total AD service

	b.  The applicant provides no documentary evidence to support his contention that the AD service dates are incorrect.

5.  The evidence of record shows the applicant's initial DD Form 214 should be corrected to show he completed 4 months and 17 days of net active service.  However, the evidence of record also shows the dates of entry and separation from AD are correctly recorded on both of his DD Forms 214.

6.  Records show the applicant served in the ARNGUS and LAARNG from 
1 August 1988 through 21 December 1990.

	a.  A computation of the net service for this period shows the following:

	1990  12  21		date of discharge (ARNGUS/LAARNG)
	- 1988  08  01		date of enlistment (ARNGUS/LAARNG)
	=     02  04  20
	+ _                1		day inclusive
	=     02  04  21		net service this period (ARNGUS/LAARNG)

	b.  The applicant provides no documentary evidence to support his contention that the date of his discharge from the ARNGUS/LAARNG is incorrect.

   c.  It is acknowledged that, on 16 October 1991, corrections were made to the applicant's 21 December 1990 NGB Form 22.  However, the corrections did not affect the date of discharge.  Moreover, there is no evidence of record that shows the applicant performed military service after 21 December 1990.

   d.  Therefore, there is an insufficient evidentiary basis to correct the date of his discharge from the ARNGUS/LAAARNG.

7.  Item 18 of the applicant's 17 December 1990 contains the entry, "Individual completed period for which ordered to active duty for purpose of post service benefits and entitlements."  The VA is responsible for determining a veteran's eligibility for federal veteran benefits.  Therefore, the applicant should address any claim to veteran benefits to the VA.

8.  The applicant's pay records show the dates and number of UT assemblies for which he was paid during the period of his military service.  He provides no evidence to dispute the UT pay records.

9.  The applicant's pay records show he received basic pay for the period of his IADT from 31 May 1989 through 30 September 1989.  The pay records provided do not include an LES for his IADT during October 1989.  Thus, the available pay records offer insufficient evidence regarding his pay for October 1989.  In any event, in his application to this Board, the applicant does not dispute his pay for this period of service.

10.  The pay records provided fail to show that he received basic pay for the period of AD from 30 November 1990 through 17 December 1990 when he was REFRAD based on a request for hardship discharge.  However, in such cases, the Soldier routinely receives a local payment for the pay he is due at separation.  In as much as the applicant was REFRAD after only 18 days of AD service, it is most likely that is what occurred.  Thus, there is insufficient evidence to support the applicant's contention.

11.  Therefore, in view of all of the foregoing evidence, it would be appropriate to correct the net active service for the period of his initial DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 deleting the entry from item 12, block c, of his 1989 DD Form 214 and replacing it with the entry "00 04 17" (i.e., 0 years, 4 months, 17 days).

2.  The Board further determined the evidence presented is 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 an injury and medical treatment in July 1989, the date of his release from active duty on 17 December 1990, the date of his discharge from military service on 21 December 1990, and any additional pay for active duty military service.



      _______ _  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)                                         AR20130013002



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ABCMR Record of Proceedings (cont)                                         AR20130013002



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