IN THE CASE OF:	  

	BOARD DATE:	  24 July 2008

	DOCKET NUMBER:  AR20080000938 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction to the following items of his 
19 April 1985 separation document (DD Form 214) be corrected:  Item 11 (Primary Specialty Number, Title and Years and Months in Specialty); Item 12 (Record of Service); Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized); Item 14 (Military Education); and Item 18 (Remarks).

2.  The applicant states, in effect, that upon his release from active duty (REFRAD) and placement on the Temporary Disability Retired List (TDRL) on 
19 April 1985, he was issued an incomplete DD Form 214.  He claims that orders permanently retiring him on 26 December 1986 are not accepted as legal documents without a final DD Form 214.  He also claims that without a final 
DD Form 214, he is unable to qualify for promotion to the next higher grade in United States Government positions.  He further states that his DD Form 214 contains errors in the date he entered and the date he was separated from active duty, which should reflect that he entered on 26 February 1973 and that he was separated on 26 December 1986.  

3.  The applicant further states that his DD Form 214 should show that he completed 13 years and 10 months of active duty service and that the periods reflected in Item 11 for the various military occupational specialties (MOSs) listed are in error.  He also claims that Item 13 should show his entitlement to the 
4th Award of the Army Good Conduct Medal (AGCM), the Overseas Service Ribbon (OSR) and the National Defense Service Medal (NDSM).  
4.  The applicant also states that military occupational specialty (MOS) 71B (Clerk-Typist) should be added to Item 14.  He further claims that the disability rating shown in Item 18 should reflect 60% as opposed to 70%, that the entry "Separated from service on temporary records" should be deleted, and that he should be issued a new final DD Form 214 reflecting these corrections.

5.  The applicant provides the following documents in support of his application:  Self-Authored Statements; Armed Forces Examining and Entrance Station Special Orders Number 39, dated 26 February 1973; DD Form 214; Department of Army (DA) Orders D233-11, dated 11 December 1986; Honorable Discharge Certificate; Electronic Mail (e-mail) Message, dated 21 August 2007; Department of Veterans Affairs (VA) Letter, dated 22 August 2007; National Personnel Records Center Letter, dated 1 October 2007; and Request Pertaining to Military Records (SF 180).

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 record shows that he initially enlisted in the Regular Army (RA) and entered active duty on 26 February 1973.  He continually served through 29 November 1977, at which time he was honorably discharged for the purpose of immediate reenlistment.  On 30 November 1977, he reenlisted for 
6 years, and began the period of service documented in his final DD Form 214.  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) is void of any overseas service tour entries in Item 5 (Overseas Service).  Item 6 (Military Occupational Specialties) shows he was awarded MOS 71L (Administrative Specialist) in August 1973, and it contains a temporary pencil entry that indicates he was awarded the secondary MOS of 11B (Infantryman) in August 1982.  


4.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 shows that he earned the following awards during his active duty tenure:  Army Service Ribbon (ASR); OSR; Army Commendation Medal (ARCOM), 2nd Award; and Army Good Conduct Medal (AGCM), 3rd Award.  Item 17 (Civilian Education and Military Schools) DA Form 2-1 shows that he completed the 71B General Clerk Course in 1973, and Item 35 (Record of Assignments) shows that during the period between 18 January 1984 and his REFRAD on 19 April 1985, he was assigned to MOS 71L positions, Performing duties as an administrative specialist.  

5.  The applicant's record contains no orders or other documents showing he was ever recommended for or awarded the 4th Award of the AGCM. 

6.  On 1 March 1985, a PEB convened at Fort Gordon, Georgia, to evaluate the applicant.  The PEB determined the applicant was physically unfit for further service.  The PEB recommended a combined disability rating of 70%, and that the applicant be placed on the TDRL with a reexamination during August 1986.  

7.  On 19 April 1985, the applicant was honorably REFRAD under the provisions of Paragraph 4-24e [2], Army Regulation 635-40, by reason of Physical Disability-Temporary, and was placed on the TDRL.  Item 11 of the DD Form 214 he was issued at the time contains an entry showing he served in MOS 71L (Administrative Specialist) for 11 years and 8 months and that he held the MOS 11B (Infantryman) for 2 years and 8 months.

8.  Item 12a of the applicant's DD Form 214 shows he entered active duty on the period covered on 30 November 1977.  Item 12c (Net Active Service This Period) shows he completed a total of 7 years, 4 months, and 2 days of creditable active military service during the period covered by the DD Form 214 (20 November 1977-19 April 1985).  Item 12d (Total Prior Active Service) shows he had completed 4 years, 7 months and 27 days of prior active military service. 

9.  Item 13 of the DD Form 214 shows he earned the ARCOM 1st Oak Leaf Cluster, ASR and AGCM (3rd Award).  Item 14 is void of any entries showing completion of military educational courses during the period covered by the 
DD Form 214.  Item 18 contains the entries "Disability Rating 70%" and "Separated from Service on Temporary Records".

10.  USAPDA Orders D233-11, dated 11 December 1986, directed the applicant's removal from the TDRL and permanent retirement on 26 December 1986, with a combined disability rating of 60%.  


11.  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 or her office, grade, rank, or rating.  Appendix C-10 contains guidance on the TDRL and states, in pertinent part, that TDRL status is authorized for a maximum of 5 years, but permanent disposition may be made at an earlier date.  Final disposition may result in permanent retirement with the same, greater, or lesser disability percentage rating; separation with severance pay (if less than 20 years service); or a finding of physical fitness. 

12.  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 preparation of the DD Form 214 and provides item-by-item preparation instructions.  The instructions for Item 11 state, in pertinent part, to enter the titles of all MOSs served for at least 1 year and include for each MOS the number of years and months served, as documented in the applicant's PQR.

13.  The instructions for Item 12a state, in pertinent part, to enter the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued (emphasis added).  Item 12b states, in pertinent part, to enter the Soldier's REFRAD, separation, or discharge date.  Item 12c, states to enter the amount of service this period, computed by subtracting item 12a from 12b and Item 12d states to enter total amount of prior active military service from previously issued DD Forms 214, less lost time. 

14.  The instructions for Item 13 state, in pertinent part, to enter all awards earned during all periods of military service.  The instructions for Item 14 state, in pertinent part, to list formal in-service training courses successfully completed during the period of service covered by the DD Form 214, and the instructions for Item 18 state, in pertinent part, that this block is for Headquarters Department of Army mandatory requirements when a separate block is not available, and as a continuation for entries in blocks 11, 13, and 14.  It further states that when a Soldier is separated with a temporary record an appropriate entry will be made in Item 18. 

15.  The separation documents regulation makes no provisions for consolidating DD Forms 214 issued for separate periods of active duty service, or for corrected a DD Form 214 based on actions that take place subsequent to a member's separation from active duty service.  


16.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy. Paragraph 2-10 of the awards regulation prescribes the policy for award of the NDSM.  It states, in pertinent part, that the NDSM is authorized for any period of active duty service performed during the period 1 January 1961 through 
14 August 1974.

17.  Paragraph 5-4 contains guidance on award of the Overseas Service Ribbon. It states, in pertinent part, that the OSR is authorized for all members of the Active Army, Army National Guard and Army Reserve in an active Reserve status Soldiers’ who are credited with a normal overseas tour completion.  The ribbon may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status as defined above on or after 1 August 1981.  There are no provisions for awarding the OSR to members who were not in an Active Army status on or after 1 August 1981.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Item 13 of his DD Form 214 should be corrected to include all awards to which he is entitled was carefully considered and found to have partial merit.  

2.  By regulation, the NDSM is authorized for active duty service completed between 1 January 1961 through 14 August 1974, and the record confirms the applicant served on active duty during this period.  Therefore, it would be appropriate to add this award to his record and separation document at this time.

3.  The applicant's contention that he is eligible for the OSR and the 4th award of the AGCM was also carefully considered.  However, Item 5 of his DA Form 2-1 is blank, which indicates he completed no overseas tours and there are not orders or other documents on file that indicate he was ever recommended for or awarded the 4th Award of the AGCM.  As a result, notwithstanding the OSR entry in Item 9 of his DA Form 2-1, there is an insufficient evidentiary basis to support granting this portion of the requested relief. 

4.  The applicant's contention that Item 11 should be corrected to reflect he held and served in MOS 71L for 13 years and 9 months and MOS 11B for approximately 4 years and 5 months was carefully considered.  However, the evidence of record confirms the applicant was awarded MOS 71L in August 1973 and continually served in this MOS until being REFRAD and placed on the TDRL.  Although there is a pencil entry on his record that indicates he held the secondary MOS 11B, there are no orders or other documents on file that indicate he was ever formally awarded this MOS.  As a result, there is an insufficient evidentiary basis to add it to Item 11 of his DD Form 214 at this time. 
5.  The applicant's contention that Item 12a and Item 12b of his DD Form 214 should be corrected to reflect an entry date of 26 February 1973 and a separation date of 27 December 1986, was also carefully considered.  However, by regulation, the date entered in Item 12a will be the date the member enters active duty on the specific period of service, and the entry in Item 12b will be the date the member is released, separated, or discharged from active duty.  In this case, the evidence of record confirms the applicant reenlisted and began the specific period of service covered by the DD Form 214 on 30 November 1977, and that he was REFRAD and placed on the TDRL on 19 April 1985, and his active duty service completed during this period is properly documented in Item 12c, which accounts for the service performed during the period covered by the DD Form 214 (30 November 1977-19 April 1983).  Further, Item 12d properly accounts for and documents the prior active duty service completed by the applicant.  As a result, there is no apparent error related to the dates and period of service entered in Item 12 of his final separation document.  

6.  The applicant's contention that Item 14 of his DD 214 should reflect his completion of the 71L clerk typist course was carefully considered.  However, by regulation, only courses completed during the period of service covered by the DD Form 214 are entered in Item 14.  In this case, the record confirms the applicant completed the 71B course in 1973, prior to the date he entered the period of service documented by his 19 April 1982 separation document.  Therefore, it would not be appropriate to grant this portion of the requested relief. 

7.  Further, the applicant's contention that Item 18 should be corrected to show he was permanently retired with a disability rating of 60 % instead of 70% and that the statement "Separated from service on temporary records" should be removed was carefully considered.  However, the governing regulation stipulates that the combined disability rating (percentage) at the time of placement on the TRDL is the percentage which will be reflected on the DD Form 214.  The evidence of record confirms that upon the applicant's placement on the TRDL, his combined disability rating was 70%.  Therefore, there is no error injustice related to this entry.  

8.  By regulation when a member is separated from service with incomplete records the remark "SEPARATED FROM SERVICE ON TEMPORARY RECORD" will be entered in Item 18 (Remarks) section of the DD Form 214.  Given the applicant's complete record was not available at the time the DD Form 214 was prepared, this entry was appropriately added to Item 18. 


9.  Finally, a DD Form 214 documents a member's active duty service.  There are no regulatory provisions that provide for correcting a DD Form 214 based on actions that take place subsequent to a member's separation form active duty.  As a result, given the applicant's time on the TDRL is not active duty service, it would not be appropriate to add information pertaining to his permanent disability retirement, which is properly documented in retirement orders, to his 19 April 1983 DD Form 214.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his 19 April 1985 DD Form 214 by adding the National Defense Service Medal to Item 13; and by providing him a correction to his separation document that includes this change.  

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 correction of Item 11 (Primary Specialty Number, Title and Years and Months in Specialty), Item 12 (Record of Service); Item 14 (Military Education), Item 18 (Remarks), and further correction of Item 13 of his 19 April 1983 DD Form 214.  




       _   ___x____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080000938



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ABCMR Record of Proceedings (cont)                                         AR20080000938


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