BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090013206


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 correction of his DD Form 214 Certificate of Release or Discharge from Active Duty) in Block 18 (Remarks) to show he was ordered to active duty under Title 10, U.S. Code, section 673.

2.  The applicant states he was ordered to active duty during Operation Desert Storm under Title 10, U.S. Code.

3.  The applicant provides:

	a.  his DD Form 214;

	b.  Orders 1-1, Headquarters and Headquarters Detachment (HHD), 3rd Brigade, 84th Division (Training), Milwaukee, WI, dated 22 January 1991; and

	c.  Permanent Orders 11-5 (Corrected Copy), Headquarters, 4th United States Army, Fort Sheridan, IL, dated 21 January 1991.

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 US Army Reserve (USAR) for 8 years on 7 November 1986.  He was honorably discharged on 6 November 1995.

3.  The applicant was a member of HHD, 3rd Brigade, 84th Division (Training).  He was ordered to active duty with his unit on 22 January 1991 for a period of 12 months, effective 22 January 1991.  This activation was under 10 USC 673.

4.  The applicant's DD Form 214 shows he entered active duty on 22 January 1991.  It also shows he was separated on 22 March 1991 and returned to his USAR unit in Milwaukee when his unit was released from active duty.  He served 2 months and 1 day of the 12-month period.  His DD Form 214 does not contain any remarks in Block 18.

5.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The version in effect at the time of the applicant's Gulf War service provided that Block 18 is used for entries required by HQDA for which a separate item is not available on the form and for completing entries that are too long for their blocks.  It did not mandate an entry indicating activation under Title 10.  The 30 September 2000 version of Army Regulation 635-5 did provide the following:  "For a Reserve soldier ordered to active duty and deployed to a foreign country, enter the following [statement]…ORDERED TO ACTIVE DUTY IN SUPPORT OF (OPERATION NAME) PER 10 USC (applicable section)…."

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his DD Form 214 to indicate in Block 18 that his Gulf War service was under 10 USC 673.

2.  Army Regulation 635-5, in effect at the time, did not require the requested entry.  In 2000, the regulation was revised to require an entry for USAR Soldiers that stated "ORDERED TO ACTIVE DUTY IN SUPPORT OF (OPERATION NAME) PER 10 USC (applicable section)."

3.  The applicant's DD Form 214 is not in error.
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)                                         AR20090013206





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ABCMR Record of Proceedings (cont)                                         AR20090013206



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