RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 May 2007
	DOCKET NUMBER:  AR20060014320 


	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

Mr. John J. Wendland, Jr.

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, correction of his discharge document.

2.  The applicant states, in effect, he was injured doing physical training (PT) while on active duty at Fort Hood, Texas.  The applicant also states that according to the Department of Veterans Affairs (VA), his records do not indicate he was discharged because of a service-connected injury; therefore, he is not eligible to receive GI Bill benefits.  As a result, the applicant states, in effect, he believes his discharge document is in error.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 28 January 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 28 January 2003, the date of his release from active duty (REFRAD).  The application submitted in this case is dated 22 September 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 Army Board for Correction of Military Records (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.  The applicant’s military service records show that he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 26 October 2000.  Upon completion of basic combat training and advanced individual training the applicant was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).

4.  The applicant’s military service records contain a copy of Headquarters,
90th Regional Support Group, San Antonio, Texas, Orders M-288-0002, dated 15 October 2001 and Orders M-304-0059, dated 31 October 2001.  These orders show, in pertinent part, that the applicant was ordered to active duty as a member of his Reserve Component unit (i.e., 321st Military Intelligence Battalion, 10031 East Northwest Highway, Dallas, Texas) for an initial period of active duty of 12 months that may be extended up to 24 months.

5.  The applicant’s military service records contain a copy of Headquarters, U.S. Total Army Personnel Command, St. Louis, Missouri, Orders A-10-295253, dated 24 October 2002, that show the applicant was ordered to active duty on
19 October 2002 for the purpose of an active duty medical extension of 30 days, not to exceed 17 November 2002.  These orders also show that the applicant was attached to Darnall Army Community Hospital, Medical Hold Company, Fort Hood, Texas, and that upon completion of this duty the applicant was to return to his home station and be released from active duty.

6.  The applicant's military service records contain a DD Form 214 that shows he was honorably REFRAD under the provisions of Army Regulation 635-200, Chapter 4 (Completion of Required Active Service) on 28 January 2003.  This document also shows, in pertinent part, that the applicant entered active duty this period on 18 October 2001; was separated from active duty on 28 January 2003; completed 1 year, 3 months, 11 days net active service; was credited with
4 months and 22 days total prior active service; and 7 months total prior inactive service.  Item 18 (Remarks) of the DD Form 214 shows, in pertinent part, that the applicant completed the period for which he was ordered to active duty for the purpose of post-service benefits and entitlements.  This document further shows that the applicant was transferred to Company B, 321st Military Intelligence Battalion, 10031 East Northwest Highway, Dallas, Texas.

7.  The applicant’s military service records contain a copy of a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 September 2002, with enclosures.  This documentation shows, in pertinent part, that the applicant injured his back on 13 December 2001 while playing touch football during PT. This documentation also shows that on 4 February 2003, the Line of Duty (LOD) approval authority reviewed the LOD for completeness and found the applicant's injury was incurred in the line of duty.

8.  The applicant’s military service records contain a copy of Headquarters, U.S. Army Physical Disability Agency (USAPDA), TAPD-PDB, Washington, District of Columbia (DC) memorandum, dated 14 May 2003, subject:  Physical Disability Separation, and Headquarters, USAPDA, Washington, DC, Orders D94-6, dated 14 May 2003.  These documents show that the applicant's disability was rated at 10 percent and he was discharged from the USAR with severance pay, in the rank of specialist/pay grade E-4, effective 30 May 2003.  These documents also show that the applicant was credited with 1 year, 10 months, and 21 days of active service as computed under Title 10, United States Code, section 1208 (provided he completed at least 6 months active duty) and 2 years, 7 months, and 17 days of service for basic pay as of 30 May 2003.  These documents further show that the applicant was assigned to Company B, 321st Military Intelligence Battalion, 10031 East Northwest Highway, Dallas, Texas.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank or rating.  Chapter 8 (Reserve Components), paragraph 8-9 (Disposition), provides, in pertinent part, that a Soldier not on extended active duty who is unfit because of physical disability may be separated with severance pay if his or her disability is rated at less than 30 percent; he or she has less than 20 years of service as defined in Title 10, United States Code, section 1208; and their disability occurred in the line of duty, and is the proximate result of performing active duty.

10.  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 also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record (PQR), Enlisted/Officer Record Brief (ERB/ORB), or any other document authorized for filing in the Official Military Personnel File (OMPF).  Paragraph 2-1 (Preparing the DD Form 214) provides that a DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement or discharge.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge document should be corrected because it does not show that he was discharged because of a service-connected injury.  However, the applicant provides insufficient evidence in support of his claim.

2.  The evidence of record shows that the applicant was a member of the USAR and was ordered to active duty with his unit.  The evidence of record also shows that he served in an active duty status from 18 October 2001 to 28 January 2003 and was issued a DD Form 214 documenting the completion of required active duty service.

3.  The evidence of record shows that subsequent to his REFRAD, the USAPDA issued orders discharging the applicant from the USAR under the provisions of Army Regulation 635-40, effective 30 May 2003, and authorized disability severance pay.  These orders, in effect, substantiate the applicant's separation based upon disability.  Therefore, the applicant's military service records correctly reflect his REFRAD and subsequent discharge from the USAR.

4.  The evidence of record shows that the applicant was discharged from the USAR based on an injury he sustained while in an active duty status.  Had the applicant remained in an active duty status through the completion of his Physical Disability Evaluation System (PDES) processing, the authority entered on the applicant's DD Form 214 would have been based on Army Regulation 635-40.  However, the evidence of record shows that the applicant was REFRAD and allowed to return to his USAR home station during his PDES processing.  The applicant was subsequently issued orders discharging him from the USAR based on disability and, since a DD Form 214 was not authorized to document the applicant's discharge from the USAR, a DD Form 214 was not issued at that time.  Therefore, the evidence of record shows that the applicant's separation documents properly document his REFRAD and discharge from the USAR.  

5.  The evidence of record shows that the applicant's DD Form 214 was properly prepared and issued in accordance with the appropriate Army regulations in effect at the time of his REFRAD.  The evidence of record also shows that the DD Form 214 administratively establishes the applicant's active duty period of service for purposes of Veterans Administration benefits.  In this regard, the U.S. Army does not change a former Soldier's discharge document solely to enhance his or her eligibility for government benefits or employment.  Therefore, the applicant provides insufficient evidence to support his request.

6.  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 this requirement.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 January 2003; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
27 January 2006.  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 timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___RTD__  ___MJF _  ___RML_  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.




____Richard T. Dunbar____
          CHAIRPERSON




INDEX

CASE ID
AR20060014320
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/03
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20030128
DISCHARGE AUTHORITY
AR 635-200, Chapter 4
DISCHARGE REASON
Completion of Required Active Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0200.0000
2.

3.

4.

5.

6.