IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080006370 


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 correction of his records to show he was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for performing 21 days of active duty for an exercise in Germany in 1986, and to show the narrative reason of separation on this DD Form 214 as physical disability, which would entitle him to Veterans Administration (VA) medical care.

2.  The applicant states that in 1986, he was ordered to active duty for training for a period of 21 days in support of the Return of Forces to Germany (REFORGER) Exercise.  However, he suffered a cold weather injury in his feet upon return to the United States and was subsequently treated for this injury.  He further adds that because of this injury, he should have been issued a DD Form 214 and should have received disability compensation.  

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  State of New Jersey, Trenton, New Jersey, Orders 4-29, dated 7 January 1986, Order to Active Duty for Training (ADT), and Orders 32-4, dated 19 February 1986, Attachment to Medical Treatment Facility.

	b.  DD Form 1351-2 (Travel Voucher or Sub-Voucher), dated 9 February 1986.

	c.  Illegible DA Form 2139 (Military Pay Voucher).

	d.  Letter of Appreciation, dated 29 January 1986.  

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.  With prior enlisted service in the U.S. Navy (USN) from October 1972 to November 1976, the applicant's records show that he executed a series of enlistments and/or reenlistments in the New Jersey Army National Guard (NJARNJ) and the USN Reserves, from 1978 to 1997.  He served in several military occupational specialties (MOS), including 11B (Infantryman) and 52D (Power Generator Equipment Repairer).  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.  

3.  On 13 January 1986, while a member of the 1st Brigade, 50th Armored Division, the applicant was ordered to ADT for a period of 21 days in support of the “Winter REFORGER 1986” and was subsequently attached to the 504th Maintenance Company, 87th Maintenance Battalion, Germany, for the duration of the exercise.  His records further show that upon conclusion of the exercise on 1 February 1986, the applicant returned to his parent unit.

4.  On 19 February 1986, the Department of Military and Veterans Affairs, NJARNG, Trenton, New Jersey, published Orders 32-4, directing the applicant’s attachment to the Medical Treatment Station, Patterson Army Hospital, Fort Monmouth, New Jersey, for the purpose of medical evaluation/hospitalization on 14 February 1986 and 18 February 1986.  The facts and circumstances surrounding the applicant’s medical evaluation and/or hospitalization are not available for review with this case,

5.  On 24 June 1997, the Department of Military and Veterans Affairs, NJARNG, Trenton, New Jersey, published Orders 175-002, discharging the applicant from the NJARNG and transferring him to the Retired Reserve, effective 24 June 1997.  
6.  The applicant's medical records are not available for review with this case.

7.  Army Regulation 635-5, in effect at the time, governed the preparation of the DD Form 214.  This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It also 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.  The DD Form 214 will be prepared for active Army soldiers on termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration term of service (ETS)), physical disability separation, or punitive discharge under the UCMJ); Reserve Component (RC) Soldiers completing 90 days or more of continuous active duty for training (ADT); Full-Time National Guard Duty (FTNGD), active duty for special work (ADSW), temporary tours of active duty (TTAD), or Active Guard Reserve (AGR) service; RC Soldiers separated for cause or physical disability regardless of the length of time served on active duty; ARNGUS and USAR soldiers mobilized under sections 12301(a), 12302, or 12304, title 10, U.S. Code and ARNG soldiers called into Federal service under chapter 15, or section 12406, title 10, U.S. Code, regardless of length of mobilization, when transitioned from active duty; RC Soldiers completing initial ADT that results in the award of a military occupational specialty (MOS), even when the active duty period was less than 90 days. This includes completion of advanced individual training (AIT) under ARNGUS Alternate Training Program or USAR Split Training Program.

8.  The DD Form 214 will not be prepared for Soldiers whose active duty or FTNGD tour ends because of death or other reasons specified in AR 680-29; enlisted Soldiers discharged for immediate reenlistment in the RA; removed from the TDRL; found disqualified on reporting for active duty and who do not enter actively upon duties per orders; on active duty terminating their RC status to integrate in the RA; AGR and other RC soldiers who are entering on extended active duty for a specific period of time and are retained beyond their initial contractual release date without a break in active duty; separated from active duty and were furnished a prior edition of DD Form 214, unless that form must be reissued for some other reason.  A State Adjutant General, or authorized agent, may issue DD Form 214 to ARNGUS soldiers released after 90 days or more of continuous ADT, or ARNGUS soldiers released after 90 days or more of continuous FTNGD under 32 USC 101(19). The authenticating official must be Federally recognized and authorized to sign.  In these cases, the Office of the State Adjutant General will be considered the equivalent of an Active Army transition center (TC).


9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), governs the evaluation for physical fitness of Soldiers who may be unfit to their military duties because of physical disability.  This regulation applies to the Active Army, the Army National Guard and the U.S. Army Reserve.  Paragraph 3-2b of this regulation provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement creates a presumption that the soldier is fit.

10.  Chapter 61, Title 10, U.S. Code provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The US Army Physical Disability Agency, under the operational control of the Commander, US Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense (DOD) Directive 1332.18 and Army Regulation 635-40.  
Soldiers enter the Physical Disability Evaluation System four ways:  

	a.  Referred by a Medical Evaluation Board (MEB).  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility (MTF) conducts a MEB to determine whether the Soldier meets the medical retention standards of AR 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a Physical Evaluation Board (PEB) to determine physical fitness under the policies and procedures of AR 635-40; 

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to a MEB/PEB is one of the actions the MMRB Convening Authority may direct; 


	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the MTF for evaluation.  If evaluation results in a MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referred as a result of HQDA action.  The Commander, US Army Human Resources Command (USAHRC), upon recommendation of The Surgeon General, may refer a Soldier to the responsible MTF for medical evaluation as described in (3) above.  USAHRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier.

11.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  With respect to issuing the applicant a DD Form 214, the evidence of record shows that the applicant performed 21 days of ADT and that this period of service is less than 90-days; therefore, applicant is ineligible for the issuance of a DD Form 214. 

2.  With respect to medical disability, the applicant’s record is void of the facts and circumstances surrounding what he called a medical injury during his ADT. Furthermore, there is no evidence in the applicant's records and the applicant did not submit any evidence that he had a medical condition which would have warranted his referral to the Physical Disability Evaluation System (PDES).  Therefore, he was not considered by a Medical Evaluation Board (MEB).  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical disability.

3.  With respect to veteran status and medical care, the applicant’s service in the USN and the NJARNG qualifies him for the name “veteran.”  Nevertheless, when it comes to medical care, the applicant is reminded that the Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact a local/regional VA representative who can best advise him on his eligibility for VA benefits.  

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  Therefore, he is not entitled to any type of relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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       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)                                         AR20080006370



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ABCMR Record of Proceedings (cont)                                         AR20080006370



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