RECORD OF PROCEEDINGS


	IN THE CASE OF:	  

	
	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070002068 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. William Blakely

Chairperson

Mr. William D. Powers

Member

Mr. Donald L. Lewy

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 her discharge document to show award of the Defense Meritorious Service Medal (DMSM) and a Veterans Affairs (VA) disability rating of 40 percent.

2.  The applicant states, in effect, that the DMSM and VA disability rating were both received after her discharge document was signed.  The applicant adds, in effect, she is not claiming an injustice, but just wants her discharge document to show the updated information.

3.  The applicant provides a copy of DD Form 2412 (Defense Meritorious Service Medal) Certificate, dated 4 October 2002; Citation; Headquarters, Defense Information Systems Agency, Arlington, Virginia, Memorandum Number 161, dated 16 October 2002, subject: Announcement of Award; Department of VA, Tiger Team, VA Special Processing Unit, Cleveland, Ohio, letter, dated 22 July 2003; and Department of VA, Washington Regional Office, Washington, DC, letter, dated 25 October 2004.

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's military service records show that she enlisted in the U.S. Army Reserve on 12 October 1982 and entered active duty in the Regular Army (RA) for a period of 4 years on 11 January 1983.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 83F (Photographer).  Her MOS was subsequently designated MOS 81L (Photograph and Layout Specialist).


3.  The applicant's military service records show that she served continuously on active duty in the RA, attained the rank of staff sergeant (SSG)/pay grade E-6, and honorably retired from active duty in the rank of SSG, on 31 January 2003, after completing 20 years and 20 days net active service.

4.  The applicant's military service records contain a copy of a DD Form 2412, dated 4 October 2002; Citation; and Headquarters, Defense Information Systems Agency, Arlington, Virginia, Memorandum Number 161, dated 16 October 2002, subject: Announcement of Award.  These documents show, in pertinent part, that upon occasion of the applicant’s retirement from active duty, the Director, Defense Information Systems Agency announced award of the Defense Meritorious Service Medal to the applicant for exceptionally meritorious service during the period 28 April 1997 to 31 January 2003.

5.  The applicant's military service records contain a copy of Headquarters, Fort Myer Military Community, Arlington, Virginia, Orders 078-0002, dated 19 March 2002, which show the applicant was released from active duty on 31 January 2003, to be placed on the retired list effective 1 February 2003.  This document also shows, in pertinent part, the type of retirement was non-disability and statute authorizing retirement was Title 10, United States Code, sections 3914 and 1372.

6.  The applicant's military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 31 January 2003.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 shows she was awarded the Joint Service Commendation Medal (2nd Award), Army Achievement Medal, Joint Meritorious Unit Award (3rd Award), Army Good Conduct Medal (6th Award), National Defense Service Medal (2nd Award), Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon with Numeral “2”, Army Service Ribbon, Presidential Service Badge, and Joint Chiefs of Staff Identification Badge.

7.  The applicant's DD Form 214 shows that she retired from active duty on
31 January 2003 and contains the separation authority, narrative reason for separation, separation code, and character of service pertaining to the applicant's discharge.  This document shows that the authority for the applicant’s separation was Army Regulation 635-200, Chapter 12, and the narrative reason for her separation was sufficient service for retirement.  Based on the authority and reason for her separation, the applicant was assigned a Separation Program Designator (SPD) Code of “RBD.”  This document also confirms that the applicant was discharged under honorable conditions.
8.  In support of her application, the applicant provides a copy of a DD Form 2412, dated 4 October 2002; Citation; and Headquarters, Defense Information Systems Agency, Arlington, Virginia, Memorandum Number 161, dated
16 October 2002, which show she was awarded the Defense Meritorious Service Medal for exceptionally meritorious service during the period 28 April 1997 to
31 January 2003.  She also provides a copy Department of VA, Tiger Team, VA Special Processing Unit, Cleveland, Ohio, letter, dated 22 July 2003 and Department of VA, Washington Regional Office, Washington, DC, letter, dated
25 October 2004. These documents show, in pertinent part, that the VA granted the applicant’s claim for disability benefits with an overall or combined evaluation of 40 percent and issued a certificate establishing civil service preference.

9.  A review of the applicant's military service records reveals that she may be entitled to an additional award that is not shown on her DD Form 214.

10.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Fort Belvoir, Fort Belvoir, Virginia, Permanent Orders 163-215, dated
12 June 1991, as amended by Headquarters, U.S. Army Fort Belvoir, Fort Belvoir, Virginia, Permanent Orders 214-215, dated 2 August 1991, which show she was awarded the Driver and Mechanic Badge with Operator - S Bar.

11.  Army Regulation 600-8-22 (Military Awards), in effect at the time, in pertinent part, provided for award of the Driver and Mechanic Badge to drivers, mechanics, and special equipment operators to denote the attainment of a high degree of skill in the operation and maintenance of motor vehicles.  Commanders of brigades, regiments, separate battalions, and any commander in the rank of lieutenant colonel or higher may approve award of the Driver and Mechanic Badge and the corresponding component bars authorized for wear on the Driver and Mechanic Badge.  The Military Awards regulation also shows the eligibility requirements for operators of special mechanical equipment.  This regulation requires that the Soldier’s primary duty involve operation of Army materials handling or other mechanical equipment; completion of 12 consecutive months or 500 hours of operation, whichever comes later, without accident or written reprimand as the result of his or her operation; and the Soldier’s operating performance must have been adequate in all respects.  The Operator with S (for special mechanical equipment) component bar is authorized for wear with the Driver and Mechanic Badge.

12.  Department of Defense (DoD) 1348.33-M (Manual of Military Decorations and Awards) provides, in pertinent part, for award of the Defense Meritorious Service Medal (DMSM).  The DMSM shall be awarded to members of the Armed Forces of the United States who, after 3 November 1977, distinguished themselves by noncombat meritorious achievement or service.  The DMSM is specifically intended to recognize exceptionally meritorious service performance and to honor an individual’s accomplishments over a sustained period.  This document also shows, in pertinent part, that authority to award the DMSM is delegated to the Directors of Defense Agencies for Service members assigned to their respective Agencies.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 12 (Retirement for Length of Service) sets forth the policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Army Soldiers who are retiring in their enlisted status.  This document provides that Soldiers in the RA must be on active duty when they retire and, in pertinent part, references Title 10, United States Code, 
section 3914.

14.  Army Regulation 635-5 (Personnel Separations - 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 Enlisted/Officer Record Brief (ERB/ORB), separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File (OMPF).  Paragraph 2-4 (Completing the DD Form 214) of the Separation Documents regulation contains item-by-item instructions for completing the
DD Form 214.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) state to list awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22. Each entry will be verified by the Soldier's records.  Do not use abbreviations.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD Code of “RBD” as the appropriate code to assign RA enlisted Soldiers who are separated under the provisions of Army Regulation 635-200, Chapter 12, based upon sufficient service for retirement.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10,United States Code, Chapter 61.  It 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 or her office, grade, rank, or rating.  This Army regulation provides, in pertinent part, that the VA program for disability benefits is separate and distinct from the Army disability system.  It also states that the VA makes its own decisions concerning entitlement to disability compensation and ratings based on the statutes and regulations which govern its operations.  The VA is not bound by decisions of the Army; and likewise, the Army is not bound by VA decisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her discharge document should be corrected to show award of the Defense Meritorious Service Medal and a VA disability rating of 40 percent because the DMSM and VA disability rating were received after her DD Form 214 was signed and, therefore, are not recorded on her discharge document.

2.  The evidence of record shows that the applicant was awarded the Defense Meritorious Service Medal.  Therefore, she is entitled to correction of her records to show this award.

3.  Permanent Orders awarded the applicant the Driver and Mechanic Badge with Operator - S Component Bar.  Therefore, it would be appropriate to 
to correct her records to show this badge with the component bar.

4.  The evidence of record shows that the applicant’s non-disability retirement from active duty was voluntary, under authority of Army Regulation 635-200, Chapter 12 and Title 10, United States Code, sections 3914 and 1372.  There is no evidence of record, and the applicant fails to provide evidence, that shows she was retired from active duty based upon a temporary or permanent disability under the provisions of Army Regulation 635-40.  The evidence of record also shows that the VA program for disability benefits is separate and distinct from the Army disability system, that the VA makes its own decisions concerning entitlement to disability compensation and ratings based on the statutes and regulations which govern its operations, and the Army is not bound by VA decisions.  Therefore, the applicant is not entitled to correction of her records to show she retired from active duty under the provisions of Army Regulation
635-40 with a 40 percent disability rating.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___WB__  ___WDP_  ___DLL _  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 adding to Item 13 of her DD Form 214 the Defense Meritorious Service Medal and Driver and Mechanic Badge with Operator- S Bar.

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 retirement from active duty under the provisions of Army Regulation 635-40 with a 40 percent disability rating.




_____William Blakely______
          CHAIRPERSON




INDEX

CASE ID
AR20070002068
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/16
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20030131
DISCHARGE AUTHORITY
AR 635-200, Chapter 12
DISCHARGE REASON
Sufficient Service for Retirement
BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
107.0016.0000
2.
108.0400.0000
3.

4.

5.

6.