RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            04 MARCH 2004                  
	DOCKET NUMBER:   AR2003092317

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Mr. Eric N. Andersen		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that an order be published discharging him from the Army Reserve.

2.  The applicant states that he was never discharged from the Army Reserve, and consequently, is not receiving credit for his entire period of service.   

3.  The applicant provides the documents depicted herein.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 29 April 1983.  The application submitted in this case is dated 25 June 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Army National Guard for 6 years on                   17 December 1981, incurring a 6-year statutory service obligation.  

4.  National Guard Bureau Form 22 (Report of Separation and Record of Service) shows that the applicant was discharged from the Army National Guard of Georgia on 29 April 1983 because of his enlistment in another Reserve unit.  That form shows that he was transferred to the Army [Reserve] Control Group (ROTC [Reserve Officer Training Corps]).  An order published by the State of Georgia, Office of The Adjutant General, that same date shows that he was discharged from the Army National Guard and as a Reserve of the Army effective on 29 April 1983.  

5.  The applicant enlisted in the Air Force for 4 years on 23 May 1985.

6.  In response to his 17 December 2001 request for a discharge from the Army Reserve in order to calculate his service time for pay and retirement points, on    4 February 2002 the applicant was provided a document showing the retirement points he earned while serving with the Army National Guard, and a copy of the order discharging him from the Army National Guard and as a Reserve of the Army.  

7.  In response, on 13 August 2002, the applicant stated that he was not discharged from the Army Reserve, but transferred to the Army Reserve Control Group (ROTC), and that the terminal date of his military service obligation was 16 December 1987.  He stated that he attended the Army ROTC, and indicated that he attached a transcript of his classes while participating in the program.  He stated that although he was disenrolled from the program, he was transferred back to the Army Reserve Control Group until the fulfillment of his contract.  He stated that he was informed at that time he would be susceptible to recall to active duty.  The transcript that he provided shows that he attended classes at Georgia Southwestern College from the fall of 1981 to the winter of 1984.

8.  In correspondence dated 8 May 2003 to a member of this agency the applicant reiterated that it was his understanding that his service would continue until 16 December 1987.  He stated that he attended college from August 1981 to June 1984 where he was enrolled in the Army ROTC, and when he left college and ROTC in 1984, he was informed that he had a service obligation in the inactive Ready Reserve.  He stated that he enlisted in the Air Force on 23 May 1985 and was still serving on active duty.  He stated that Air Force personnel notified him that he should have received credit for service towards pay and retirement back to 1981.             

9.  On 29 May 2003 a member of this agency informed the applicant that the National Guard order of 29 April 1983 discharged him, but did not transfer him to the Army Reserve Control Group.  He was asked to provide an order that superseded that order, or an order dated later than 29 April 1983, to process his request.  On 25 June 2003 the applicant provided a copy of the above-mentioned NGB Form 22.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did have a 6-year statutory service obligation beginning on      17 December 1981 as he states, notwithstanding the order discharging him on 29 April 1983; however, other than the document showing that he enlisted in the Air Force, there is no evidence of his military service subsequent to that date, nor has the applicant provided any.  

2.  Absent is any contract showing enrollment in the ROTC, enlistment in any Reserve unit or any order discharging the applicant from the ROTC Control Group or a Reserve unit.  There is a gap between his discharge from the Army National Guard in 1983 and his enlistment in the Air Force in 1985.  

3.  Nevertheless, the applicant himself stated that he enlisted in the Air Force on 23 May 1985, in effect continuing to satisfy the requirement of his statutory military obligation, that is until 16 December 1987.  

4.  Although the applicant may well have served in the Army Reserve after his discharge from the Army National Guard in 1983, the evidence is lacking.  Consequently, the applicant's request is not granted.   

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 April 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         28 April 1986.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KAN __  __KLW__  __ENA __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		__Kathleen A. Newman___
		        CHAIRPERSON

INDEX

CASE ID	AR2003092317	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040304	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.