MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER:
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military
records
Exhibit B - Military Personnel Records (including
advisory opinion, if any)
APPLICANT REQUESTS: That his separation under the Early Release Program Special Separation Benefit be changed to a medical retirement and that his DD Form 214 be corrected to show his last unit of assignment as LEC, USAFACFS//TRADOC, TC Fort Sill, OK and a different separation code.
APPLICANT STATES: He has received a 30 percent disability rating through the Department of Veterans Affairs (VA).
EVIDENCE OF RECORD: The applicants military records are not available. The information contained herein was obtained from alternate sources.
He enlisted in the Regular Army on 2 January 1987. He was honorably separated on 14 October 1994 under the Early Release Program Special Separation Benefit (SSB). He received an SSB payment of $20,878.56. His separation code was KCB, Early Release Program Special Separation Benefit.
The applicants medical records are available. There is evidence that he was treated for injuries incurred during a motor vehicle accident around December 1993; however, the only evidence of his ever receiving a physical limitations profile was in 1989 when he fractured his left hand.
His separation physical examination is not available. However, upon his separation in 1994 he enlisted in the U. S. Army Reserve for a Selected Reserve assignment. DA Form 7249-R, Certificate and Acknowledgement of Service Requirements and Methods of Fulfillment for Individuals Enlisting or Transferring into Troop Program Units of the Army National Guard/US Army Reserve upon REFRAD/Discharge from Active Army Service, shows the date of his last physical as 16 August 1994 and his physical profile as 111111, no physical limitations. The applicant signed this form.
Leave and Earning Statements on file indicate the applicant drilled with his Reserve unit from November 1994 through April 1995.
Title 10, section 1174a, U.S. Code sets forth the authority for the Service Secretary concerned to carry out a special separation benefits program. An eligible member of the armed forces may request separation under the program. Upon approval, the member shall be released from active duty or discharged and be entitled to separation pay equal to 15 percent of the product of the members years of active service and 12 times the monthly basic pay to which the member is entitled at the time of his release or discharge.
On 26 February 1998, the Department of Veterans Affairs granted him a combined 40% rating for cervical strain with degenerative changes (20 percent), muscular strain, lumbar spine (10 percent) and chronic muscular strain (10 percent).
Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2. The Early Release Program Special Separation Benefit was a voluntary program. The applicant had to have requested the separation. In the absence of evidence to the contrary, it is presumed his separation was administratively correct and in conformance with applicable regulations. There is no evidence that the request was made under coercion or duress.
3. The applicant signed the DA Form 7249-R that showed his physical profile two months prior to his separation was 111111, meaning he had no physical limitations. His Leave and Earnings Statements show he performed unit drill with his Reserve unit after his separation.
4. The separation code, KCB, shown on the applicants DD Form 214 is correct.
5. The applicants last unit of assignment on his DD Form 214 already shows L E C USAFACFS//TRADOC TC and his station where separated shows Fort Sill, OK. WOVG is the unit identification code for that unit.
6. The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to change the applicants separation.
7. In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Loren G. Harrell
Director
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