IN THE CASE OF 

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130015292 


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 following corrections of his DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 16 September 1980:

* Item 18 (Remarks) – to show Title 10 service
* Item 24 (Character of Service) – to show his character of service

2.  The applicant states his 1980 DD Form 214 is missing information.  The errors were found by the State Veterans Affairs Board.

3.  The applicant provides a copy of his 1980 DD Form 214.

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 Mississippi Army National Guard (MSARNG) on 21 July 1974.  He entered active duty for training (ADT) on 23 January 1975.  He completed advanced individual training and was awarded military occupational specialty 64C (motor transport operator).

3.  He was honorably released from active duty on 22 May 1975 and reverted to the MSARNG.  His record contains the following:

   a.  Orders 22-11, issued by The Adjutant General's (TAG) Office, MS, dated 31 January 1979, honorably discharged him from the ARNG with an effective date of 9 March 1979.

   b.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) which shows he was honorably released from the MSARNG, in pay grade E-2, on 9 March 1979 and was transferred to the U.S. Army Reserve (USAR).  The NGB Form 22 lists in:

* Item 8b (Authority and Reason) – "Orders 22-11 TAGO-MS, dated 31 January 1979, Involuntary Active Duty, paragraph 7-10e, National Guard Regulation 600-200 and Army Regulation 135-91 (Army National Guard and Army Reserve Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures)
* Item 19 (Remarks) – To Active Duty, enlisted member has 1 year, 6 months, and 21 days left on service obligation

   c.  NGB Form 22-1 (Request/Decline Copy of NGB Form 22, Narrative Reason for Separation), dated 9 March 1979, which stated he was separated for failure to meet scheduled drills.

4.  He entered active duty 10 March 1979.  He was promoted to pay grade E-4 on 1 March 1980.  His record also contains Orders 178-3, issued by the U.S. Army Transportation Center and Fort Eustis, VA, dated 11 September 1980, releasing him from active duty on 16 September 1980.  The orders show his expiration of term of service (ETS) date was 16 September 1980.

5.  He was released from active duty on 16 September 1980 and was transferred to the USAR.  His DD Form 214 lists in:

* Item 18 - no authority for this entry on active duty
* Item 24 - "blank"
* Item 25 (Separation Authority) - Chapter 2, Army Regulation      635-200 (Personnel Separations – Enlisted Separations)
* Item 26 (Separation Code) – LBK
* Item 28 (Narrative Reason for Separation) - Completion of required service (ETS)

6.  He was released from the USAR on 5 December 1980 and was transferred to the MSARNG for the purpose of enlistment.  He enlisted in the MSARNG on 6 December 1980.  He was honorably discharged from the MSARNG on 
24 August 1981.

7.  Army Regulation 135-91, in effect at the time, set the policies governing the various types of service obligations and participation requirements.  The regulation stated Reserve Components members with statutory service obligations whose participation was unsatisfactory could be ordered to active duty for 24 months, less any period of active duty or active duty for training previously performed.  

8.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 2 established policy and prescribed procedures for separating personnel who had completed the period of service for which enlisted, inducted, or ordered to active duty.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

9.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  When serving under Title 10, "active duty" means full-time duty in the active military service of the United States.  Title 10 allows the President to "federalize" National Guard forces by ordering them to active duty in their reserve component status or by calling them into Federal service in their militia status.  This does not include being involuntarily ordered to active duty for members with a statutory service obligation.

11.  When serving under Title 32 Active Duty, Title 32 service is primarily state active duty. 


DISCUSSION AND CONCLUSIONS:

1.  With respect to item 18 of his 1980 DD Form 214, the evidence shows the applicant was discharged from the MSARNG on 9 March 1979 for failure to meet scheduled drills and was involuntarily ordered to active duty for completion of his service obligation.  He was not ordered to active duty under Title 10 or 32 of the U.S. Code; therefore, item 18 would not list this information.  In view of the foregoing, he is not entitled to the requested relief.

2.  With respect to item 24 of his 1980 DD Form 214, the evidence shows that during his period of active duty from March 1979 to September 1980 he was promoted to pay grade E-4 and he completed the required period of service.  There is no evidence his service was less than honorable during this period of active duty.  It appears his period of service was honorable.  Therefore, he is entitled to correction of item 24 of his 1980 DD Form 214 to list the entry, "Honorable."

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 adding to item 24 of his DD Form 214 ending on 16 September 1980 the entry, "Honorable."

2.  The Board further determined that 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 correction of item 18 of his 

1980 DD Form 214 to show he was ordered to active duty under Title 10 or 32 of the U.S. Code.



      _______ _  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)                                         AR20130015292





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ABCMR Record of Proceedings (cont)                                         AR20130015292



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