RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            29 APRIL 2004                  
	DOCKET NUMBER:   AR2003093133

	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. Margaret K. Patterson		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Richard T. Dunbar		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.  In effect, the applicant requests that his 17 April 1972 DD Form 214 (Report of Transfer or Discharge) be corrected to show 3 years of active service, or if this is not possible, then his subsequent DD Forms 214 be corrected to reflect the Board's decision.

2.  The applicant states on 17 April 1972 he was released from active duty to complete his 3-year active duty enlistment in the National Guard.  His discharge orders stated that he was to be credited with his full term of active duty of          36 months.  There are no conflicting documents in his records on this matter.  If his assumption is correct then he should actually receive credit for 3 years of active enlisted service, allowing him to be able to have 18 years of active duty before his mandatory removal date (MRD), and sanctuary to complete 20 years of active federal service.

•	He enlisted in the Regular Army on 23 July 1970 for 3 years, was released from active duty for the convenience of the government to complete his enlistment in the National Guard with his discharge orders stating, "This individual is credited with his full term of active duty of 36 months."  There are no limitations on this statement; however, his DD Form 214 shows credit for 1 year, 8 months, and 25 days.  He completed his enlistment in the Louisiana Army National Guard and enrolled in the advanced ROTC (Reserve Officers Training Corps) program in August 1973.

•	While at Fort Sill, Oklahoma he brought up the issue of the active duty credit, but was ignored.  The DA Form 1506 (Statement of Service) was based on his discharge documents.  In 1985 he again brought up the issue, resulting in a second DA Form 1506, which credited him with          3 years of active duty.  He was released from active duty on 1 January 1987.  His DD Form 214 credits him with the 3 years of active service as does his 3 July 1991 DD Form 214 completed upon his release from active duty in support of Operation Desert Shield/Desert Storm. 

•	The Total Army Personnel Command (now the Human Resources Command) does not recognize the orders crediting him with 3 years of active service, nor does his retirement points statement give him any more active duty time than that shown on his DD Form 214/5 or his leave and earnings statements.

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 17 April 1972.  The application submitted in this case is dated 17 July 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 for 3 years on 23 July 1970, completed training and was assigned to an artillery battery in Germany.  On 23 December 1971, under the provisions of a Department of the Army message, DTG (date time group) 102035Z Dec 71, subject:  Phasedown Release Program-Expanded, he volunteered for early release from active duty to accept an assignment in a Reserve component unit of the Army.  This message is not available to the Board.  On 30 March 1972 he voluntarily elected to accept a 494-day early release from active duty in order that he could be assigned to a vacancy with Service Battery, 1st Battalion, 141st Field Artillery, a unit of the Louisiana Army National Guard (LAARNG) in New Orleans.     

4.  On 17 April 1972 Headquarters, United States Army Personnel Center, Fort Dix, New Jersey, published orders releasing the applicant from active duty on    17 April 1972 and assigning him to the above mentioned unit on 18 April 1972.  Those orders contained the remark, "This individual is credited with his full term of active duty of 36 months."  Four other individuals shown on these orders contained a like remark.  The applicant's DD Form 214 shows that he was released 15 months early to join the Army National Guard.  Item 22a(1) of that form shows that he had 1 year, 8 months, and 25 days of net service for the period of his enlistment, no other service (item 22a(2)), and a total of 1 year,       8 months, and 25 days of total active service (item 22b).

5.  On 20 April 1972 the applicant enlisted in the LAARNG for 1 year, 3 months, and 2 days.  He extended his period of enlistment on 26 June 1973 for a period of 27 months from his initial enlistment date.

6.  The applicant was discharged from the Army National Guard and as a Reserve of the Army on 29 August 1973 because of his enrollment in the advanced ROTC program.  His NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) shows his prior service in the Army from      23 July 1970 to 17 April 1972, service in the Army Reserve from 18 April 1972 to 19 April 1972, and service in the LAARNG from 20 April 1972 to 29 August 1973.  
7.  He enlisted in the Army Reserve Control Group (ROTC) for 6 years on           30 August 1973.  On 16 May 1975 the applicant was appointed a second lieutenant in the Army Reserve.  He completed the Field Artillery Officer Basic Course in November 1975.  While at that course a statement of service was prepared on 31 July 1975 showing active Army enlisted service from 23 July 1970 to 17 April 1972, and inactive enlisted service from 18 April 1972 to          30 August 1973.

8.  Subsequent to completion of the basic course, the applicant was assigned to Korea; Fort Hood, Texas; the Presidio of Monterey in California; and Germany.  He completed the Field Artillery Officer Advance Course in November 1981, again served in Germany, and in 1984 was assigned to Fort Indiantown Gap, Pennsylvania.   

9.  On 6 August 1985 a statement of service was prepared at Fort Dix showing that the applicant had 3 years of active Army enlisted service from 23 July 1970 to 22 July 1973, and inactive enlisted service from 23 July 1973 to 30 August 1973.

10.  The applicant was released from active duty in the grade of captain on           1 January 1987 at Fort Meade, Maryland and assigned to a Reserve unit in Bristol, Pennsylvania.  His DD Form 214 shows 11 years, 5 months, and 4 days of service, and 3 years of prior active service.  

11.  On 3 July 1991 the applicant was ordered to active duty in support of Operation Desert Shield/Desert Storm.  He was released on 14 November 1991 after having served 4 months and 12 days of active duty.  His DD Form 214 shows that he had 14 years, 5 months, and 4 days of prior active service.     

12.  The applicant continued his service in the Reserve and was promoted to colonel in May 1999.  He is currently serving as a mobilized Reserve officer on the Joint Staff in the Pentagon.

13.  The applicant's retirement points summary shows enlisted service in the Regular Army from 23 July 1970 to 17 April 1972, and enlisted service in the Army National Guard from 18 April 1972 to 29 August 1973.   

14.  Army Regulation 635-5, then in effect, provides instructions for completion of the DD Form 214, and states that the total service completed between the date of entry and the effective date of separation will be entered in item 22a(1), Net service this period; that all prior service will be entered in item 22a(2); and that the total service will be entered in item 22a(3).  It states that the total active service that an individual has completed beginning with the earliest period of active service up to and including current period of active duty, less any period of service in the Army National Guard or the Army Reserve not on active duty, will be entered in item 22b. 

15.  10 USC 101 provides the following definitions -

•	The term ''active duty'' means full-time duty in the active military service of the United States.  Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned.  Such term does not include full-time National Guard duty. 
•	The term ''active service'' means service on active duty or full-time National Guard duty.

16.  10 USC 3911 provides for the retirement of commissioned officers and states that the Secretary of the Army may, upon the officer's request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of which have been active service as a commissioned officer.

17.  Army Regulation 600-8-24 provides for officer transfers and discharges and states in pertinent part, that a Reserve Component officer will be released from active duty when he or she completes 20 years of active federal service (AFS).  These officers may request voluntary retirement under 10 USC 3911, provided they have 10 years commissioned service.  

18.  Army Regulation 600-8-24 provides for the nondisability retirement of commissioned officers who have 20 years or more of active federal service (AFS), and states in pertinent part that voluntary retirement eligibility is determined by AFS (10 USC 3926).  Years of service, in this case, are computed by adding all service performed as a member of the Army or the Air Force. 

19.  Active Federal commissioned service is defined as full-time duty in the active military service of the United States.  It includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the secretary of the military department concerned. 

20.  Army Regulation 135-180 implements statutory authorities governing the granting of retirement pay to soldiers and former Reserve component soldiers and states in pertinent part that active duty means full-time duty in the active military service of the United States.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was released from active duty, a term indicating the cessation of his active service as defined by law, and enlisted immediately in the Army National Guard.  He attended training with the Guard as shown on his retirement points summary, and presumably was paid for his efforts.  Granting the applicant's request to correct his 17 April 1972 DD Form 214 to show 3 years of active service would, in effect, signify service in the Regular Army and the Army National Guard, simultaneously.  He did not so serve.  His 17 April 1972          DD Form 214 is correct.  It properly shows his active service.  

2.  The applicant was credited with his full term of active duty of 36 months, as the remark on his orders releasing him from active duty indicates.  The intent of including this remark on his orders is inexplicable; however, credit for a term of active duty is not synonymous with active service or full time duty in the active military service.  In this respect, the law is explicit.  

3.  The applicant did not have three years of active service for the period requested.  There is no error or injustice.  His request to correct his 17 April 1972 DD Form 214 to show 3 years of active service is unwarranted.  

4.  Consequently, the applicant's DD Forms 214 prepared subsequent to 1972 are erroneous.  The 1 January 1987 DD Form 214 showing 3 years of total prior active service (item 12d of that form) should be corrected to show 1 year,            8 months, and 25 days.  His DD Form 214 of 14 November 1991 showing         14 years, 5 months, and 4 days of total prior active service (item 12d) should be corrected to show 13 years, 1 month, and 29 days.    

BOARD VOTE:

__MKP __  __MHM _  __RTD __  GRANT 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 and to excuse failure to timely file.  As a result, the Board recommends that the applicant's 1 January 1987 DD Form 214 showing 3 years of total prior active service (item 12d of that form) be corrected to show 1 year, 8 months, and 25 days; and that his DD Form 214 of                 14 November 1991 showing 14 years, 5 months, and 4 days of total prior active service (item 12d) be corrected to show 13 years, 1 month, and 29 days. 
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 correcting his 17 April 1972 DD Form 214 to show 3 years of active service. 

		__Margaret K. Patterson___
		        CHAIRPERSON

INDEX

CASE ID	AR2003093133	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040429	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.