RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 May 2007
	DOCKET NUMBER:  AR20060008303 


	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. Gerard W. Schwartz

Acting Director

Ms. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Michael J. Flynn

Member

Ms. Rose M. Lys

Member

	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, in effect: 

	a.  Item 12a (Date Entered AD This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect
24 March 1976;

	b.  Item 12c (Net Active Service This Period) of his DD Form 214 be corrected to reflect "12 Years 7 Months 7 Days";

	c.  Item 12d (Total Prior Active Service) of his DD Form 214 be changed to reflect "6 Years 4 Months 3 Days";

	d.  that his 3 years and 2 days of U.S. Army Reserve (USAR) service be identified as "active Reserve" and not "inactive Reserve" in Item 12e (Total Prior Inactive Service" of his DD Form 214; and

	e.  the opportunity to complete his last 18 months of service or, in the alternative, early medical retirement.

2.  The applicant states, in effect, that his DD Form 214 is incorrect and should reflect that he has 18 years, 7 months, and 7 days of total military service.  He also states that he performed periods of active duty while assigned to the USAR. His application is in response to an earlier decision from the Army Board for Correction of Military Records (ABCMR) which indicated that he had 12 years,
7 months, and 7 days of creditable active service.

3.  The applicant provides a copy of his DD Form 214, with an effective date of 31 October 1988; a copy of his DD Form 214, with an effective date of 26 May 1971; and excerpts from U.S. Title 10 pertaining to computation of service, active duty and Reserve retirement, and computations of retired pay. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 October 1988, the date of his discharge from the Army.  The application submitted in this case is dated 19 May 2006.

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 ABCMR to excuse failure to file within the 3-year statute of limitations 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.  A portion of the applicant's application is a request for reconsideration of an earlier denial by the ABCMR for medical retirement (AR20050013942, 4 May 2006).  Although the applicant's request was received within one year of the ABCMR's original decision, he did not provide new evidence and/or argument with this request.  The ABCMR will not consider any further requests for reconsideration of this matter without new evidence.  

4.  The evidence of record shows the applicant had three periods of active duty for which he was issued three separate DD Forms 214:

	27 May 1968-26 May 1971		3 years
	24 March 1976-26 July 1979	3 years, 4 months, 3 days
	27 July 1979-31 October 1988	9 years, 3 months, 4 days

5.  The applicant was assigned to the USAR Control Group (Reinforcement) from 27 May 1971-26 May 1974, a total of 3 years.  On 22 March 1976, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for six years, and entered active duty on 24 March 1976, thereby serving another 2 days in the inactive Reserve.  

6.  The applicant's total military service is 18 years, 7 months, and 9 days.
 
7.  The applicant was discharged from his last period of service under the provisions of Army Regulation 635-40, paragraph 4-24e(3), by reason of physical disability, with severance pay.  He was properly processed through the Army Physical Disability Evaluation System and found to be physically unfit due to right knee pain (the medical evidence showed he had full range of motion in the knee) which was evaluated as 10 percent disabling.  He was found physically unfit to perform duties in his military occupational specialty (MOS) of 11B (Infantryman), and although he could have performed duties in his secondary MOS, he was not reclassified due to administrative considerations, in that the MOS was overstrength.

8.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Physical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

9.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  Item 12a of the applicant's last DD Form 214 correctly shows he entered active duty on 27 July 1979.  He was issued a separate DD Form 214 covering his active duty service from 24 March 1976 through 26 July 1979.  Therefore, he is not entitled to have this item changed on his DD Form 214.

2.  Item 12c of the applicant's last DD Form 214 correctly shows his net service for the period covered in the DD Form 214 as 9 years, 3 months, and 4 days.  Therefore, he is not entitled to have this item changed on his DD Form 214.

3.  Item 12d of the applicant's last DD Form 214 is incorrect and fails to reflect his first 3 years of active duty for which he was issued a separate DD Form 214.  Therefore, he is entitled to have this item changed on his DD Form 214 to show "6 Years 4 Months 3 Days."

4.  Item 12e of the applicant's DD Form 214 correctly shows his total prior inactive service.  Therefore, he is not entitled to have this item changed on his DD Form 214.

5.  The applicant was properly discharged under the provisions of Army Regulation 635-40, paragraph 4-24e(3), due to a physical disability.  He was found unfit to perform his duties in his primary MOS and his secondary MOS was overstrength.  There are no provisions under which the applicant may be returned to active duty to complete 18 months of service given his type of discharge.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 October 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
30 October 1991.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__rtd___  __mjf___  __rml___  GRANT PARTIAL 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 all Department of the Army records of the individual concerned be corrected by changing Item 12d of his DD Form 214, with an effective date of 31 October 1988, to show "6 Years 4 Months 3 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 changing Items 12a, 12c, and 12e of his DD Form 214, with an effective date of 31 October 1988, and to return him to active duty for 18 months.



						Richard T. Dunbar
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060008303
SUFFIX

RECON

DATE BOARDED
20070503
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
100.0200
2.
100.0000
3.

4.

5.

6.