RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 27 March 2008 
	DOCKET NUMBER:  AR20070004783 


	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

Ms. Stephanie Thompkins

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell 

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 to his expiration term of service (ETS) date on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, that his ETS date should be corrected from 10 June 2002 to 10 October 2002.  He also states that due to an injury sustained while on active duty, Army doctors recommended an extension of his ETS date to 10 October 2002, in order to continue medical treatment, examination, and physical therapy.  Due to a clerical error, his DD Form 214 was not updated to reflect this extended ETS date.  He has already submitted a similar request, which was denied due to lack of evidence.  Because of a deployment with the Kansas Army National Guard, he was unable to resubmit until now.   

3.  The applicant provides a timeline of events; copies of a memorandum from the Chief, Patient Administration Division, US Army Medical Department Activity, Fort Leavenworth, Kansas; his treatment records; correspondence between Army and civilian doctors; and his final medical examination report, in support of his request.

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 records show he enlisted in the Delayed Entry Program on 17 October 1997 and enlisted in the Regular Army, in pay grade E-1, on 11 June 1998, for 4 years.  He completed training and was awarded military occupational specialty (MOS) 11B, infantryman.  He was advanced to pay grade E-5 on 1 October 2001.

3.  On 11 March 2002, the Department of the Army, Camp Casey Transition Center, Korea, published orders releasing the applicant from active duty, not by reason of physical disability, effective 10 June 2002.  The orders state that he was on approved transition leave from 15 May 2002 to 10 June 2002.

4.  The applicant submits a copy of a memorandum from the Chief, Patient Administration Division, US Army Medical Department Activity, Fort Leavenworth, dated 7 June 2002, requesting he be extended for the period of 120 days for the purpose of completing a Medical Care/Medical Evaluation board/Physical Evaluation Board, based on a diagnosis of Spondylolisthesis L4-5.  He requested approval/disapproval of the retention be furnished to the Commander, Munson Army Medical Health Center, Fort Leavenworth.  In an attached affidavit, he advised the applicant of his rights and advantages of remaining in an active duty status in the Army beyond the scheduled date of release for the purpose of completion of hospital care and/or physical disability evaluation.  The applicant elected retention on active duty beyond the scheduled ETS.

5.  There is no evidence in the applicant's records that retention for medical reasons was granted beyond his scheduled ETS.

6.  The applicant was released from active duty at the completion of his required active duty service on 10 June 2002.  He was transferred to the United States Army (USAR) Control Group (Reinforcement).  Item 18 (Remarks) of his DD Form 214 shows he had completed his first full term of service.  Item 21 (Signature of Member Being Separated) contains his signature.

7.  The applicant provided copies of a 31 July 2002 letter from his doctor to the Munson Army Health Center, Fort Leavenworth.  He also submitted documentation that shows he received treatment for his bilateral spine diagnosis at HealthSouth, Lenexa, Kansas, on 14, 15, 16, 19, 20, 21, 22, 23, 27, and 28 August 2002.  He also submitted copies of his Tricare Explanation of Benefits statements, dated 25 February 2003.  This document is essentially a statement of the action taken on his TRICARE claim.

8.  The applicant was released from the USAR on 18 December 2002 and he enlisted in the Kansas Army National Guard.

9.  In a letter dated, 21 March 2005, the ABCMR returned the applicant's application without referral to the Board based on insufficient evidence that a probable error or injustice occurred.  The letter stated that the applicant's OMPF contained a properly constituted separation document that confirmed he was separated on 10 June 2002.  The applicant was requested to obtain the document approving his extension beyond ETS, or any treatment records or statements from the military medical personnel involved in his extension process or medical treatment who could attest to his claim that he was officially extended on active duty beyond his normal ETS for continued medical treatment/extension.

10.  Army Regulation 635-200 (Enlisted Separations), Chapter 4, specifies that a Soldier may be separated upon expiration of enlistment or fulfillment of service obligation.  

11.  Army Regulation 635-5 governs the preparation of the DD Form 214.  It states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  This regulation specifies that Item 21 will contain the signature of the member being separated.  The Soldier's signature indicates he/she has reviewed the form and accepted the information contained therein as being correct to the best of his/her knowledge.  Item 22 will contain an official's signature authorized to authenticate the DD Form 214.  The authenticating official's signature indicates that the information contained on the DD Form 214 is correct, as far as the records permitted; that a quality control check of the form had been made; and that the separation was valid and authorized by the approval authority.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to correction to his ETS date on his DD Form 214.  He has not shown error, injustice, or inequity meriting the relief he now requests.  

2.  The applicant contends that he was recommended for extension of his ETS to 10 October 2002 and his DD Form 214 was not updated to reflect the 10 October 2002 date.  There is no evidence in the available records, and the applicant has provided none, to show that the request for his extension on active duty beyond 10 June 2002 was approved.  Therefore, the applicant's DD Form 214 correctly shows that he was released from active duty on 10 June 2002.

3.  The applicant has failed to show through the evidence submitted or the evidence of record that the DD Form 214 issued is in error or unjust.  Therefore, there is no basis for granting his request.

4.  It is further noted that the applicant's DD Form 214 contains the applicant's signature and an authenticating official's signature which serves as a testament that the information contained therein was correct.

5.  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.  

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___LDS__  __JM___  ___J____  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.




_____John T. Meixell_____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.