IN THE CASE OF:	  

		BOARD DATE:	  7 August 2008

		DOCKET NUMBER:  AR20080005852 


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 that Item 28 (Narrative Reason for Separation) of her separation Document (DD Form 214) be corrected to stop erroneous debt collection.

2.  The applicant states, in effect, that she has proof that she did not owe any of the money that was recouped from her and that the problem stems from incorrect paperwork.  She states that since she was discharged from the service she has received numerous bills from the Department of Defense Finance and Accounting Services (DFAS).  DFAS has recouped over $4,500.00, alleging she owes money for overpayment and bonus recoupment.

3.  She states, in effect, that she received a letter explaining the bonus recoupment, which was based on the narrative reason for separation as reflected on her DD Form 214 that she submitted to dispute the debt.  She also received a letter from DFAS stating that a debt of $652.78 had been cancelled.  She received an account statement from DFAS for collection for her accrued leave she was entitled to.  She paid the debt but never received any payment for her accrued leave for her active duty tour.  Her 2007 tax return was taken away from her for the debt collection and her monthly disability pay was stopped.  This has caused a financial hardship, so she wrote to the Department of the Treasury Financial Management Services for assistance, but she still did not receive her tax return.  She was told that the recoupment was valid because her DD Form 214 reflected her medical condition as having existed prior to her service in the military.

4.  She has been receiving disability for injuries that were no fault of her own from an accident while on active duty and she should not have to pay back her enlistment bonus.  She has sent verifying information to various related agencies to help with the investigation to combat her "never ending debt collection" issue.  She claims her DD Form 214 contains the wrong reason for separation and it should have read "Completion of Required Active Service."  The orders that she submitted shows she was not released from active duty by reason of disability; she was released from active duty in order to finish her medical evaluation board (MEBD) at home station.

5.  She states, in effect, that her initial discharge orders were revoked and the new orders states she "suffered from a disability resulting from a combat-related injury."  However, a determination was not made until 11 March 2004 (the payment start date for her Department of Veterans Affairs (DVA) disability) that confirms her injuries were service-connected.  For that reason her narrative reason for separation needs to be corrected and the separation date should reflect 11 March 2004.  She hopes as a result of the correction she would be refunded the money that has been collected for her alleged debt to include all payments she received until 11 March 2004, accrued leave, Montgomery GI Bill, and bonus entitlement.

6.  The applicant provides a copy of her DD Form 214; personal statement; letter addressed to DFAS, dated 9 May 2005; letter from DFAS, dated 23 May  
2005; letter from DFAS, dated 21 April 2005; DA Form 5261-R (Selected Reserve Incentive Program – Enlistment Bonus Addendum); Bonus Recoupment worksheet; Account Statement from DFAS, dated18 July 2005; two letters from DFAS, dated 25 October 2005 and 27 December 2005; letter addressed to the Department of The Treasury Financial Management Service, dated 13 February 2007; Facsimile Transmittal Sheet, dated 6 July 2007; Department of the Army, Headquarters, 3rd Infantry Division (Mechanized) and Fort Stewart Orders 
042-0125, dated 11 February 2004 with revocation Orders 051-0091, dated
20 February 2004; Department of the Army, Headquarters, 3rd Infantry Division (Mechanized) and Fort Stewart Orders 051-0092, dated 20 February 2004; DVA Decision Rating, dated 15 July 2004; Individual's Leave Record, dated
20 February 2004; two "DJMS-RC MMPA PRINTs;" and an email message, dated 2 August 2007.

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 personnel record shows she enlisted in the U.S. Army Reserve on 13 September 2000.  She entered active duty for training on 
4 January 2001 and completed the necessary training and was awarded the military occupational specialty (MOS) 95B (Military Police).

3.  She was honorably released from active duty and transferred to Headquarters and Headquarters Company (HHC), 724th Military Police Battalion, Fort Lauderdale, Florida on 25 May 2001.  She completed 4 months and 22 days of Net Active Service This Period.

4.  Her DD Form 214 she submitted shows she was ordered to active duty in support of Operation Enduring Freedom on 15 March 2003.  She was honorably discharged from active duty on 20 February 2004.  The separation program designator (SPD) code "JFM" and narrative reason for separation she received denotes "disability, existed prior to service, PEB (Physical Evaluation Board)." She completed 11 months and 6 days of Net Active Service This Period.

5.  She did not submit a copy of her MEBD and PEB's proceedings, nor did her records contain a copy.

6.  Orders Number 042-0125, dated 11 February 2004 that the applicant submitted shows she was released from active duty on 20 February 2004, "not by reason of physical disability" and assigned to the 810th Military Police Company, Fort Lauderdale, Florida.  This order was revoked by Orders Number 051-0091, dated 20 February 2004.

7.  Orders Number 051-0092, dated 20 February 2004 that the applicant submitted shows she was reassigned to the U.S. Army Transitional Point, Fort Stewart, Georgia for transition processing on 20 February 2004.  The additional instructions states that the disability was not (emphasis added) based on injury or disease received in the "LOD" (Line of Duty) as a direct result of armed conflict caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law, or resulted from a combat-related injury as defined in
26 USC 104.

8.  The DVA's Decision Rating, dated 15 July 2004, shows that the applicant was granted service-connection for her pes planus (Flat Feet).  The decision rating states that she had pes planus before entering the service, but it was aggravated during her military service and her monthly pay would start on 1 March 2004.

9.  Pes Planus is a condition where the arch or instep of the foot collapses and comes in contact with the ground.  In some individuals the arch never develops.

10.  The two letters from DFAS, dated 21 April 2005 and 23 May 2005, shows that the applicant’s debt of $652.78 and Servicemember's Group Life Insurance (SGLI) was cancelled.  The other two letters from DFAS, dated 25 October  
2005 and 27 December 2005, shows that the applicant's debt for accrued leave payment for $820.23 was paid in full and removed from her 2005 wages.

11.  The additional documents that she submitted included the debt dispute letter, Individual's Leave Record, Facsimile Transmittal Sheet, and email message, addressed the debt in the amount of $2,587.38; a history of her leave requests transactions, and an email message.

12.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table
C-1, states that the SPD code "JFM" denotes "disability, existed prior to service, PEB."

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

14.  Title 38, United States Code, permits the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in the Army’s disability finding.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different decisions based on the same impairment.  Furthermore, unlike the Army the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s 
examinations and findings.  Confusion arises from the fact that different rating systems are used by the Army and the DVA.  While both use the Veterans Administration Schedule for Rating Disabilities (VASARD), not all of the general policy provisions set forth in the VASARD apply to the Army.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that Item 28, narrative reason for separation of her DD Form 214 be corrected, so that the erroneous debt collection can stop.

2.  The applicant's record does not contain a copy of her MEBD or PEB proceedings to substantiate that an error was made in Item 28 of her DD Form 214.  

3.  Her separation orders show she was assigned to the U.S. Army Transition Point for transition processing on 20 February 2004 and was discharged on 20 February 2004, by reason of disability, existed prior to service, PEB.  Contrary to the applicant’s contention, the additional instructions on her discharge orders state that the disability was not based on injury or disease received in the LOD as a direct result of armed conflict caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law, or resulted from a combat-related injury as defined in 26 USC 104.

4.  In the evaluation of Reservists who have been on active duty for short periods of time, the physician must take the short period of active duty into consideration.  As such, medical problems resulting from the limited physical exercise required during deployment training may lead the physician to suspect that the Soldier had the condition prior to his or her entry on active duty.  This can be a valid assessment even when the Soldier was never treated for the condition prior to entry on active duty, or even when the Soldier never experienced any discomfort from the condition.  The Soldier’s medical problem remained non-symptomatic while the individual was a civilian living a sedentary lifestyle.  When the individual entered active duty and was required to perform physical exercise, symptoms of that condition manifested. 

5.  While it is understandable that the applicant would now like a separation due to physical unfitness, a PEB determined that her Pes Planus (flat feet) existed prior to her entry on active duty.  Given the nature of the condition, that decision appears logical and prudent.  
6.  The DVA made a determination that the applicant had Pes Planus before entering the service but granted her service-connection for her disability based on the DVA’s finding that the condition was aggravated during her military service.  

7.  The fact that the DVA, operating under its own laws and regulations, awarded the applicant a disability rating and that the Army did not is only indicative of the difference between the purposes for which the ratings are assigned.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of her service in arms.



      _________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)                                         AR20080005852



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ABCMR Record of Proceedings (cont)                                         AR20080005852



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