IN THE CASE OF:	  

		BOARD DATE:	  31 July 2008

		DOCKET NUMBER:  AR20080007240 


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, that Item 28 (Narrative Reason for Separation) of his separation document (DD Form 214) be corrected to reflect injury/disability.

2.  The applicant states that he was injured in the line of duty and was released from active duty due to the injury.  He states that if he had not been injured he wouldn't have been released from active duty.  He was discharged from the Army National Guard 4 months later for being medically unfit for retention.

3.  The applicant provides a copy of his DD Form 214; Mississippi Military Department, The Adjutant General's Office Orders Number 212-331, dated  
30 July 2004; Department of the Army, Mobilization Center Shelby Orders Number 289-02 and 289-03, dated 15 October 2004; DA Form 2173 (Statement of Medical Examination and Duty Status), dated 14 October 2004; DA Form 
3349 (Physical Profile), dated 14 October 2004; Pre-Deployment Health Assessment, dated 14 October 2004; National Guard Bureau (NGB) Form 22 (Report of Separation and Records of Service; and DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 he enlisted in the Army National Guard on 4 December 1996.  He entered active duty for training on  
19 February 1997.  He completed the necessary training and was awarded the military occupational specialty (MOS) 13F (Fire Support Specialist).  He was honorably released from active duty and transferred to Headquarters and Headquarters Battery (HHB), 2nd Battalion, 114th Field Artillery, Starkville, Mississippi on 19 June 1997.

3.  Orders 212-331, dated 30 July 2004, shows he was ordered to active duty in support of Operation Iraqi Freedom on 25 August 2004 and he had to report to the mobilization station at Camp Shelby, Mississippi on 29 August 2004.  The additional instructions on the orders stated that if the applicant failed to meet deployment medical standards based on a temporary profile or temporary medical condition he may be released from active duty and returned to his place of residence, subject to a subsequent order to active duty upon resolution of the temporary profile or condition.

4.  The orders further show that the applicant was ordered to active duty for a period of less than 30 days for mobilization processing that included medical and dental screening and or care.  If the applicant was determined to be not medically qualified for deployment (whether because of a temporary or permanent medical condition), he would be released from active duty, transferred to his prior status, and returned to his home address.

5.  The DA Form 2173 shows that the applicant was examined for a severe ankle sprain with pre-exiting "DJD" at Camp Shelby on 14 October 2004.  However, it does not show how the injury occurred.  The DA Form 3349 dated 14 October 2004 shows that the applicant was given a permanent profile for severe ankle arthritis.  

6.  During the pre-deployment health assessment he was found not to be deployable due to severe ankle pain "DJD."  The pre-deployment health assessment shows the entry "Reason:  Soldier requires MEB/MMRB (Medical Evaluation Board/MOS Medical Retention Board).

7.  Order Numbers 289-02 and 289-03 show that the applicant was released from active duty, not by reason of physical disability and assigned to HHB,  
2nd Battalion, 114th Field Artillery, Starkville, Mississippi on 20 October 2004.

8.  The DD Form 214 he was issued shows he was released from active duty and transferred to HHB, 2nd Battalion, 114th Field Artillery, Starkville, Mississippi on 20 October 2004.  He was given a separation code of LBK which denotes completion of required active service.  He completed 1 month and 26 days of Net Active Service This Period.

9.  Item 28 of his DD Form 214 shows the entry completion of required active service.

10.  A memorandum from the Department of the Army and Air Force, Joint Force Headquarters, Mississippi National Guard dated 3 February 2005 shows the applicant's medical disqualifications as his ankle and osteoarthritis.  The applicant was given two options to choose from, either to accept the findings and be medically discharged, or request a non-duty related Physical Evaluation Board.  The applicant accepted the findings and requested to be separated from the Mississippi Army National Guard.

11.  The NGB Form 22 he was issued shows he was honorably separated from the Mississippi Army National Guard by authority and reason of NGR  
600-200, 8-26j(1), medically unfit for retention.  He completed 8 years, 2 months, and 6 days of Net Service This Period.

12.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table 
2-3, states that the Separation Program Designator (SPD) code LBK denotes completion of required active service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that Item 28 of his DD Form 214 should be corrected to read injury/disability, because he was injured in the line of duty and was released from active duty due to the injury.

2.  The evidence shows that the applicant was ordered to active duty in support of Operation Iraqi Freedom.  However, during his pre-deployment assessment he was found not to be deployable due to severe ankle pain "DJD."

3.  According to the additional instructions from Orders 212-33, if the applicant failed to meet deployment medical standards based on a temporary profile or temporary medical condition he may be released from active duty and returned to his place of residence.  The orders further states, if the applicant was determined to be not medically qualified for deployment (whether because of a temporary or permanent medical condition), he would be released from active duty, transferred to his prior status, and returned to his home address.

4.  There is no evidence or indication that there was an error or injustice, which caused the applicant to be released from active duty due to completion of required active service.  Since the applicant was properly released from active duty, there is no reason to change the narrative reason for separation in Item 28 of his DD Form 214.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  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.



      _________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)                                         AR20080007240



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ABCMR Record of Proceedings (cont)                                         AR20080007240



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