IN THE CASE OF:	  

		BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140007820 


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 items 11d (Effective Date) and 19c (Date of Entry) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states his DD Form 214 only reflects the time he spent on active duty for training (basic combat and advanced individual training).  In effect, his Delaware Army National Guard (DEARNG) unit was activated for about 9 months during the Wilmington Riot of 1968.  This time is not reflected in his military record.  A member of the same unit told him that he received credit for the time he spent on active duty during the riots.  He has had hearing problems for years and this active duty credit will enable him to receive benefits.

3.  The applicant provides copies of the following:

* DD Form 214
* letter to the Disabled American Veterans and their response
* Wilmington Riot of 1968 Wikipedia Article

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's Army National Guard military records are not made available to the Board for review.  However, there was sufficient documentation in his Army military record and those submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The applicant's Army military service record shows as a member of the DEARNG he was ordered to active duty for training (ACDUTRA) and entered active duty on 24 October 1966.  He completed training and was awarded military occupational specialty 13F (automatic weapons crewman).

4.  He was honorably released from ACDUTRA on 21 March 1967 and was returned to state control of the DEARNG.  He was credited with completing 4 months and 28 days of total active service.  His DD Form 214 lists in:

* Item 11d – 21 March 1967
* Item 19c – 24 October 1966

5.  He provided copies of the following:

   a.  A letter he sent to the local veterans office in January 2014 wherein he requested assistance in having his active duty dates on his DD Form 214 changed.  He stated the time should also show his duty when their unit was called to active duty during the Wilmington Riot of 1968.  A friend in the same unit was able to have his active duty credited for time spent on active duty during the riots.

   b.  A letter, dated 21 January 2014, wherein the Disabled American Veterans advised him that he would need to apply to the review board of his respective service branch for corrections or changes.

   c.  A Wilmington Riot of 1968 Wikipedia Article which stated the riot occurred in April 1968 following the assassination of Martin Luther King.  On 9 April 1968, Governor Terry ordered the 2800 strong ARNG to patrol the streets of Wilmington and to restore order.  He later ordered ARNG troops to be deployed also in Rehoboth Beach and at the campus of the predominately black Delaware State College in Dover.  Within a week, Major B---z requested withdrawal of the Soldiers, but Governor Terry refused and Wilmington remained under military occupation for the remainder of 1968 – 9 months.  Within an hour of his inauguration in January 1969, Governor Peterson signed the order finally ending the military occupation of Wilmington.

6.  Army Regulation 635-5 (Separation Documents) at the time established 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 (emphasis added).  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge, and is not intended to have any legal effect on termination of a Soldier's service.  Chapter 2 states:

* Item 11d - would list the separation date accomplished
* Item 19c – would list the effective date of separation

7.  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 active duty for training (ADT) (previously called ACDUTRA), Full-Time National Guard Duty, active duty for special work, temporary tours of active duty, or Active Guard Reserve service.  Also, RC Soldiers separated for cause or physical disability regardless of the length of time served on active duty;

	c.  Army National Guard (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 (Active Duty Report); 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.

8.  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 involuntary ordered to active duty for members with a statutory service obligation.

9.  When serving under Title 32 Active Duty, this service is primarily state active duty.  The Governor can activate National Guard personnel to “State Active Duty” in response to natural or man-made disasters or Homeland Defense missions. State Active Duty is based on State statute and policy as well as State funds, and the Soldiers and Airmen remain under the command and control of the Governor. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant entered ACDUTRA on 24 October 1966.  He was released from ACDUTRA on 21 March 1967 and was reverted back to the DEARNG.

2.  Aside from his active service from October 1966 to March 1967 for which a DD Form 214 was issued, there is no evidence he performed any other period of active duty of at least 90 consecutive days that would have qualified him for the issuance of any additional DD Forms 214.  Therefore, he is not entitled to the requested relief. 

3.  Although various internet articles including the one provided by the applicant describe the Wilmington riots of 1968, there is no evidence in the available records that the applicant was in fact ordered to active duty as a member of the DEARNG or that if he did in fact enter active duty, his active duty lasting 90 days or more.  There is no evidence of record and he provided none showing he served on full-time active duty after 21 March 1967.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20140007820





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ABCMR Record of Proceedings (cont)                                         AR20140007820



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