RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  06 May 2008
	DOCKET NUMBER:  AR20070011911 


	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. Jessie B. Strickland

Analyst

      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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, that he be afforded the opportunity to complete 20 creditable years of service for Retired Pay purposes. 

2.  The applicant states, in effect, that on 10 July 2004, he extended his enlistment for a period of 6 months to 15 January 2005; however, while undergoing treatment for medical injuries he received while serving in Iraq, he was discharged on 16 July 2004, without his knowledge, after having served     18 years, 8 months, and 16 days of service. 

3.  The applicant provides a letter from the Office of the Inspector General (IG) of the Oregon Army National Guard (ORARNG); a copy of his 6-month extension (DA Form 4836); a copy of his discharge orders and National Guard Bureau (NGB) Form 22; a Statement of Medical Examination and Duty Status (DA Form 2173); and copies of his individual sick slips.

CONSIDERATION OF EVIDENCE:

1.  The available records, though somewhat incomplete, show that the applicant initially enlisted in the Air Force Reserve (AFR) on 18 January 1973 and served in the AFR until 20 June 1973.  On 21 June 1973, he entered active duty in the Regular Air Force and served until he was released from active duty (REFRAD) on 17 June 1974.  He again served on active duty from 21 June 1974 to 21 October 1974.     

2.  On 5 August 1988, he enlisted in the Army National Guard (ARNG) and remained in the ARNG through a series of continuous extensions.  He was promoted to the pay grade of E-5 on 20 May 1991.  

3.  The applicant was serving in the Oregon Army National Guard (ORARNG) when he was ordered to active duty on 11 February 2003 in support of Operations Enduring Freedom/Iraqi Freedom.  He deployed to Kuwait on 18 April 2003 and on 10 July 2003, he sustained an injury to his left knee.  He departed Iraq on 11 December 2003 and was transferred to Fort Carson, Colorado, where he remained until he was honorably released from active duty on 16 April 2004 and was returned to his ORARNG unit.    

4.  The applicant’s expiration of term of service (ETS) was 16 July 2004 when he extended his enlistment on 10 July 2004 for a period of 6 months to change his ETS to 15 January 2005. 

5.  Although not explained in the available records, on 6 January 2005, orders were published by the ORARNG Headquarters which honorably discharged the applicant due to ETS, effective 16 July 2004.  A Report of Separation and Record of Service (NGB Form 22) was issued without the applicant’s signature and indicates that he had 18 years, 8 months, and 16 days of service for pay purposes. 

6.  On 31 March 2006, the Inspector General (IG) of the ORARNG dispatched a letter to the applicant in response to the applicant’s Inspector General Action Request (IGAR) concerning his discharge from the ORARNG.  The IG responded to the effect that he was improperly discharged from the ORARNG and that he was entitled to extend his ETS to accommodate medical processing.  He advised the applicant to apply to this Board for relief.  

7.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB) which opines that the applicant had been improperly separated from the ARNG without a proper separation board; he was denied processing of medical treatment and rehabilitation of his injuries received while deployed; and he was not afforded processing through the Physical Disability Evaluation System (PDES) after having completed more than 18 years of service.  Officials at the NGB opine that his request should be approved.  The advisory opinion was provided to the applicant for comment and on 4 April 2008, he concurred with the advisory opinion as written.

8.  A review of the available record fails to show how many creditable years of service for retired pay purposes the applicant has been credited with.

9.  National Guard Regulation (NGR) 600-200, chapter 8, provides the criteria for discharge of ARNG Soldiers.  It provides, in pertinent part, that a Soldier having completed 18, but less than 20 years of qualifying service for retired pay will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative.  All recommendations for involuntary separation of 
Soldiers in this category will be sent to the Director, NGB for consideration and forwarding to the Department of the Army for final determination.

10.  Army Regulation 135-381, Chapter 1, states, in pertinent part, that the Reserve Component (RC) Incapacitation System is to compensate, to the extent permitted by law, members of the RC who are unable to perform military duties and/or who demonstrate a loss in civilian earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty.    


DISCUSSION AND CONCLUSIONS:

1.  The applicant was granted a 6-month extension of his ETS on 10 July 2004, which changed his ETS from 16 July 2004 to 15 January 2005.  However, he was involuntarily discharged from the ORARNG on 16 July 2004 with over
18 years of service for retired pay purposes.   

2.  Although the extension paperwork may not have made it to his records in time to stop the discharge, the fact that the applicant had over 18 years of service at the time of discharge should have sent up red flags to those who were publishing the discharge orders.  However, the fact remains that the applicant had an extension to 15 January 2005 and should not have been discharged.

3.  Although there is insufficient evidence in the available records to determine how many creditable years of service the applicant had at the time of his discharge, the applicant is entitled to be reinstated to the ORARNG until his medical condition can be assessed and a determination be made as to his service computations.

4.  Accordingly, it would be in the interest of justice to revoke the 16 July 2004 discharge, to reinstate him to the ORARNG, and to grant him an antedated extension of enlistment to cover the period from 16 January 2005 to a period of 6 months after his actual reinstatement/return to the ORARNG, in order to allow sufficient time for processing of his case.

5.  Additionally, the applicant is entitled to be awarded the minimum number of points to qualify for a creditable year for retired pay purposes from the date of his discharge until he is actually reinstated to the ORARNG and to receive all back pay and allowances he would have received had he not been involuntarily discharged.   

BOARD VOTE:

__XXX __  __XXX__  __XXX__   GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State Army National Guard records and Department of the Army records of the individual concerned be corrected by:

	a.  revoking his 16 July 2004 discharge from the ORARNG and by reinstating him to the ORARNG and awarding him the appropriate number of points to qualify for a creditable year of service for Retired Pay purposes from the date of his discharge on 16 July 2004 to the date of his reinstatement; and
 
	b.  granting him an antedated extension of enlistment from 16 January 2005 to a period of 6 months after he is actually reinstated to the ORARNG, in order to settle any medical issues in question, and to pay all back pay and allowances the applicant would have earned (based on the points that he is now awarded) had he not been involuntarily discharged.




       						___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070011911



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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