IN THE CASE OF:	  

		BOARD DATE:	  2 October 2014

		DOCKET NUMBER:  AR20140002465 


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, in effect, correction of his records to show he was discharged from the U.S. Army Reserve (USAR) on 28 December 2002.

2.  The applicant states he enlisted in the Army National Guard (ARNG) of the United States (ARNGUS) on 29 December 1994 for a period of 8 years.  He served in an active status from 29 December 1994 through 28 December 2000.  He then served in an inactive status in the USAR from 29 December 2000 through 28 December 2002 and it is his understanding that he should have been discharged at that time.  However, he was issued orders that discharged him from the USAR on 24 July 2007.  He adds that this causes an error in his Army records by showing military service for a period of time that he did not serve.  He states that he is attempting to enlist in the U.S. Navy Reserve; however, he cannot enlist until this error in his Army records is corrected.

3.  The applicant provides a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

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 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the ARNGUS and Massachusetts ARNG (MAARNG) on 29 December 1994 for a period of 8 years.

3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty training (ADT) on 15 May 1995, released from ADT on 24 August 1995, and transferred to an MAARNG unit.  He was awarded military occupational specialty 88M (Motor Transport Operator).  It also shows in item 6 (Reserve Obligation Terminal Date):  28 December 2002.

4.  An NGB Form 22 shows the applicant enlisted in the ARNGUS and MAARNG on 29 December 1994, was honorably discharged on 28 December 2000, and transferred to the USAR Control Group (Annual Training).  He had completed 
6 years of total service this period.  It also shows in item 11 (Terminal Date of Reserve/Military Service Obligation (MSO)):  28 December 2002.

5.  U.S. Army Human Resources Command, St. Louis, MO, Orders
D-07-715545, dated 24 July 2007, honorably discharged the applicant from the USAR effective 24 July 2007.

6.  A review of the applicant's military service records failed to reveal any evidence that he extended the period of his 29 December 1994 enlistment or that he reenlisted in the ARNGUS, MAARNG, or USAR.
	
7.  Army Regulation 135-178 (Enlisted Administrative Separations), in effect at the time, establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNGUS and USAR.

   a.  Chapter 2, paragraph 2-15 (Discharge after expiration of the service obligation), provides that a Soldier is entitled to be discharged on the expiration of his or her service obligation, and normally will be discharged unless action is taken to retain the Soldier beyond such expiration date.  Retention beyond the expiration date of a service obligation may be either voluntary or involuntary.

   b.  Chapter 4, paragraph 4-3 (Retention beyond expiration of service obligation), provides that a Soldier may not be held in the Army beyond the normal expiration of service obligation unless the service obligation is extended by law or the provisions of paragraph 2–15 of this regulation apply.  When through administrative error a Soldier is not discharged on the actual date of completion of term of Soldier's enlistment, reenlistment, or date of completion of statutorily obligated service, or as provided in paragraph 2–15 of this regulation, a remark will be included in the "Remarks" section of the Soldier's DA Form 2–1 (Personnel Qualification Record) as follows:  "Retained beyond normal discharge date for the convenience of the Government."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military service records should be corrected to show he was discharged from the USAR on 28 December 2002 because he did not extend or reenlist to serve in the USAR beyond his MSO.

2.  Records show the applicant enlisted in the ARNGUS and MAARNG for a period of 8 years on 29 December 1994, thereby establishing his MSO as 
28 December 2002.

3.  On 28 December 2000, he was honorably discharged from the ARNGUS and MAARNG and transferred to the USAR Control Group (Annual Training).

4.  There is no evidence of record that shows the applicant extended the period of his 29 December 1994 enlistment or that he reenlisted to serve in the USAR, RA, or ARNGUS.

5.  Thus, it appears the applicant was not discharged on the date of completion of the term of his statutorily obligated service due to administrative error.  As such, the regulatory guidance shows records will be annotated to show he was retained beyond normal discharge date for the convenience of the Government.

6.  However, the applicant is not seeking such a correction.  Additionally, it is not clear why the applicant cannot enlist in the U.S. Navy Reserve unless the date is corrected.

7.  Therefore, based on the available evidence of record, no action is being taken to correct the applicant's records at this time.

8.  If the applicant desires to have his Army military records corrected to show he was retained beyond the normal discharge date for the convenience of the Government, or he provides information from the U.S. Navy as to the reason(s) his discharge date is preventing him from enlisting in the U.S. Navy Reserve, the applicant may submit an application to this Board specifying the corrective action he seeks.  However, an act of consideration by the Board does not imply his request will be approved.

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)                                         AR20140002465



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ABCMR Record of Proceedings (cont)                                         AR20140002465



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