IN THE CASE OF:	  

		BOARD DATE:	  23 OCTOBER 2008

		DOCKET NUMBER:  AR20080010580 


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 the narrative reason for his discharge be changed from parenthood to medically retired.  He also requests, in effect, award of the Purple Heart.

2.  The applicant states, in effect, that he believes he should have been medically retired because he was unable to finish his last 3 years to retire due to post traumatic stress disorder (PTSD).  He also states that he is a 16 years and 11 months veteran and an Iraq War veteran.  After serving 6 months in Iraq he was sent back to the United States for Rest/Recuperation because he had just completed a hardship tour in Korea.  Once he arrived in the United States, he found out his wife, who was at Fort Knox, Kentucky, had cancer.  He was told to report back to Fort Carson, Colorado to be sent back to Iraq.  He applied for a compassionate reassignment, which was denied.  After being discharged under the provisions of Army Regulation 635-200, paragraph 5-8, by reason of Parenthood, he was left with 16 years and 11 months with no retirement.  He further states, in effect, after 2 years his wife made a recovery and he tried to reenter the Army.  Since he was diagnosed with PTSD he was turned away and left with his 16 years and 11 months gone to waste.  He is now receiving 100 percent disability for PTSD because of repeated flashbacks and nightmares of his experiences in Iraq.  

3.  The applicant also states, in effect, some of the documents he is sending along with his application will show how he was not given the amount of separation pay that’s on his DD Form 214 (Certificate of Release or Discharge 

from Active Duty).  He also has a statement from one of the Soldiers who was with him when a rocket-propelled grenade (RPG) was shot at him.  He received shrapnel to his leg and was never given an opportunity to receive a Purple Heart, even though a casualty feeder card was filled-out.  Any and all of his medical records were left in Iraq and he does not know what happened to them because he never returned to the unit he was deployed with.

4.  In support of his application, the applicant provides copies of a DA Form 4187 (Personnel Action), his Statement of Military Pay Account, a letter from the Defense Finance and Accounting Service (DFAS), his VA Form 21-4138 (Statement in Support of Claim) along with a letter from his wife, his Department of Veterans Affairs (DVA) Rating Decision, a letter from a licensed psychologist with Communicare, electronic mail correspondence pertaining to the Purple Heart award and his PTSD, and a DA Form 2823 (Sworn Statement) pertaining to his injury.

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 record shows he enlisted in the Regular Army, in pay grade E-1, on 8 February 1994.  He reenlisted again on 2 May 1997 and 28 April 1999.  He was promoted to pay grade E-6.  

3.  The applicant provided a copy of a DA Form 4187, dated 17 December 2003, wherein his unit commander recommended approval for a current stabilization waiver for the applicant.  The unit commander stated that the applicant returned from Operation Iraqi Freedom on 8 October 2003 and requested to waive stabilization for permanent change of station (PCS) to Fort Knox due to wife’s medical condition.  He also stated that PCS to Fort Knox would help facilitated the medical treatment that the applicant’s wife needed. 

4.  On 21 October 2003, the applicant received initial counseling for a Family Care Plan (FCP).  He was given a suspense date of 30 days to establish an FCP.  He listed that his wife was under physical, psychological, medical, and emotional stress as a current problem.

5.  The applicant subsequently received counsel pertaining to a waiver of the 30-days suspense date to establish an FCP and separation under the provisions of paragraph 5-8.  He elected to waive his rights to have 30 days to establish an FCP.

6.  The applicant’s Report of Medical Examination for separation, dated 14 January 2004, shows he was found qualified for service.  

7.  In a Memorandum for Record, dated 20 January 2004, the applicant’s company commander verified that the applicant’s wife had physical and psychological issues and the situation was a long term health concern.  The company commander also stated that compassionate reassignments were given for situations that were short term and considered temporary in nature and the applicant was unable to complete an FCP that was suitable to his family needs.  The company commander further stated that in accordance with Army Regulation 600-20, a Soldier’s FCP must be validated or the Soldier would be considered non-deployable.  He recommended the applicant’s separation due to his inability to establish a FCP.

8.  On 20 January 2004, a Report to Suspend Favorable Personnel Actions was initiated against the applicant for elimination from the service. 

9.  On 20 January 2004, the applicant's unit commander advised the applicant that he was initiating action to involuntarily separate him due to parenthood.  The reason for the proposed action was that the applicant’s parental obligations were interfering with his military duties.  The unit commander advised the applicant that he was entitled to have his case heard by an administrative separation board and he could submit a conditional waiver of that right.

10.  There is no evidence, and the applicant provided none, to show he was undergoing processing for separation for a medical disability or condition on the date he was notified of his proposed separation.  

11.  On 27 January 2004, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  The applicant waived his rights and elected not to submit a statement in his own behalf.

12.  On 28 January 2004, the applicant’s commander recommended approval of his separation with an honorable discharge.  On 29 January 2004, the applicant waived his right to have his case considered by an administrative board.

13.  On 3 February 2004, the appropriate separation authority approved the applicant's discharge with the issuance of an Honorable Discharge Certificate.

14.  The applicant was honorably discharged on 11 February 2004, under the provisions of Army Regulation 635-200, paragraph 5-8, by reason of Parenthood. He was credited with 10 years and 4 days total active service this period; 
4 years, 11 months, and 2 days total prior active; and 2 years, 4 months, and 4 days of total inactive service.

15.  The applicant’s DD Form 214 shows he served in Kuwait from 2 April to 2 May 2003 and from 5 to 7 October 2003; and served in Iraq from 2 May to 5 October 2003.  His DD Form 214 also shows he was entitled to separation pay in the amount of $125,118.10.

16.  The applicant was issued a DD Form 214 that shows in Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) and Item 18 (Remarks) the following awards:  the Army Commendation Medal (2nd Award); the Army Achievement Medal (9th  Award); the Joint Meritorious Unit Award; the Army Superior Unit Award; the Coast Guard Meritorious Unit Commendation; the Army Good Conduct Medal (3rd Award); the Army of Occupation Medal; the National Defense Service Medal; the Humanitarian Service Medal; the Noncommissioned Officer’s Professional Development Ribbon, with Numeral 2; the Army Service Ribbon; the Overseas Service Ribbon (2nd Award); the Coast Guard Special Operations Service Ribbon; the Expert Marksmanship Qualification Badge, with Pistol Bar; the Marksman Marksmanship Qualification Badge, with Rifle Bar; and the Overseas Service Bar.  The Purple Heart is not included in his list of authorized awards.

17.  There are no orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There is also no evidence in his records that he was wounded or treated for wounds as a result of hostile action and the treatment was made a matter of official record.  

18.  The applicant also provided a copy of his Statement of Military Pay Account, dated 11 February 2004, that shows he was paid separation pay in the amount of $10,188.97.  


19.  The applicant further provided a copy of a VA Form 21-4138, dated 17 August 2005, wherein he stated, in effect, that between July and September 2003, while serving in Fallujah his unit was on the outskirts guarding a dam and an RPG was shot at him.  He received some shrapnel in his right leg in the form of small fragments that only required the medics using tweezers to remove the pieces.  During his 6 months in that area he was under constant fear for his life and hyperventilated 24/7 and was in a constant state of anxiety.  It was unknown where the insurgents where or when they would attack and that presented an ongoing stressor.  He attached a letter from his wife confirming what he was going through.

20.  The applicant also provided a copy of a letter from DFAS, dated 4 May 2006, where a Member of Congress was advised that their review of the applicant’s master military pay account indicated he was separated with an entitlement to half separation pay of 5 percent.  The DD Form 214 issued to the applicant incorrectly showed he received a separation pay entitlement in the amount of $125,118.10.  DFAS verified that the applicant received a gross separation pay entitlement of $12,140.4 in March 2004.  The separation pay entitlement he was entitled to was computed by the amount of the member’s base pay times the month of total active service times 5 percent.  The applicant’s DD Form 214 indicated his actual total active service as 179 months; therefore, his gross separation pay entitlement was $24,978.56. 

21.  The letter further advised that the applicant should apply for a corrected
DD Form 214 since the remarks section was incorrect.  He should provide a copy of his incorrect DD Form 214 and the correct information provided in this response and send it to the National Personnel Records Center, St. Louis, Missouri.  Based on the recalculation of the applicant’s separation pay entitlement, he was due additional pay in the amount of $7,809.80 and the payment would be mailed to him within 30 days from the date of the letter.  

22.  The applicant further provided a copy of his DVA Rating Decision, dated 28 December 2006, which granted him an increased service-connection from 10 percent to 70 percent for PTSD.  The DVA stated that his overall or combined rating was 80 percent; however, he was being paid at the 100 percent rate because he had been deemed unemployable.

23.  The applicant also provided a copy of a letter from a licensed psychologist with Communicare, dated 11 April 2007.  It appears the letter was being provided to the DVA referencing the applicant’s treatment for PTSD.


24.  The applicant further provided a copy of a DA Form 2823, dated 1 January 2008, where a servicemember of his unit stated that in August 2003, the applicant was on guard when an RPG attack occurred and he received some shrapnel to his leg.  The servicemember also stated that without regard to his own injury, the applicant returned fire to deter any more attacks so that another Soldier that had his fingers removed during the attack could be rendered first aid.

25.  A staff member of the Casualty Operations Division, Human Resources Command, Alexandria, Virginia, verified that a review of the Iraq Casualty File for the month of August 2003 failed to reveal an incident involving the applicant or any report of the applicant sustaining injuries in Iraq.  

26.  The applicant also provided electronic mail correspondence, dated 2 August 2006, 27 December 2006, 7 January 2007, and 2 May 2007, wherein the applicant was attempting to get information regarding reentering the Army, his diagnosis with PTSD, and award of the Purple Heart.  

27.  Army Regulation 635-200 (Enlisted Separations), Chapter 5, paragraph 
5-8a, in effect at the time, specified that a Soldier may be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities.  Non-availability for worldwide assignment or deployment according to the needs of the Army may be a reason for separation because of parenthood.  Separation processing may not be initiated until the Soldier is adequately counseled concerning deficiencies and has been afforded the opportunity to overcome them.  The service of a Soldier separated per this paragraph will be characterized as honorable.

28.  Army Regulation 600-20, Chapter 5, paragraph 5-5, specifies in pertinent part, that a Soldiers married to another servicemember and sole parent Soldiers are responsible for implementing the FCP and thus ensuring the care of their family members.  The Soldier must arrange for the care of their family member(s) so as to be available for duty when and where the needs of the Army dictate.  Enlisted Soldiers will be counseled on voluntary and involuntary separation whenever parenthood interferes with military responsibilities.

29.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code, Chapter 61, and 
Department of Defense Directive (DODD) 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, Chapter 3.

30.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  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 the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  

31.  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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a DVA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a DVA disability pension and the Army Board for Correction of Military Records corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the DVA pension and military retirement.

32.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change to the narrative reason of his discharge from parenthood to medically retired.  He has not shown error, injustice, or inequity for the relief he now requests.  
2.  The applicant contends that his discharge is incorrect.  However, the evidence shows that upon his return from Iraq in October 2003, he requested to waive stabilization for PCS to Fort Knox due to wife’s medical condition.  On 21 October 2003, the applicant was counseled pertaining to establishing an FCP.  He elected to waive his rights to have 30 days to establish an FCP.  Subsequently, elimination action was initiated against him.

3.  The evidence also shows the applicant acknowledged the notification of the proposed separation action and was counseled specifically about the reason for his separation action.  Therefore, the evidence clearly shows the applicant understood the reason for his discharge and the type of discharge that he would be receiving.

4.  Contrary to the applicant's assertions that he should have been medically retired, there is no evidence the applicant was referred to a medical evaluation or a physical evaluation board for consideration of any medical condition.  The applicant has failed to present evidence that he was diagnosed with PTSD or received treatment for this condition while serving on active duty.  

5.  The applicant's contentions and his belief that he should have been medically retired and that the reason should be changed from parenthood are acknowledged but these are not sufficiently mitigating to warrant a change to his discharge.

6.  The applicant's separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case.

7.  The DVA rating decisions and medical documents provided by the applicant were also carefully considered.  However, the award of a DVA rating does not establish entitlement to a medical discharge and/or medical retirement.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, the applicant was properly evaluated and is being compensated for his 
service-connected medical conditions by the DVA; however, there is no indication the applicant suffered a disabling condition while in a qualifying duty status that would have supported his processing for retirement through medical channels; therefore, there is an insufficient evidentiary basis to support granting the applicant a medical retirement at this time.  


8.  A review of the applicant’s master military pay account by DFAS indicated he was separated with an entitlement to half separation pay of 5 percent.  DFAS verified that his DD Form 214 incorrectly showed he received a separation pay entitlement in the amount of $125,118.10 and that he received a gross separation pay entitlement of $12,140.4 in March 2004.  Based on a recalculation of the applicant’s separation pay entitlement, DFAS further verified that he was due additional pay in the amount of $7,809.80 and DFAS would issue him the remaining payment within 30 days of 4 May 2006.  The applicant provided no evidence that this corrective action was not taken.  It is also noted that the applicant had been advised that he should apply for a correct DD Form 214 since the remarks section was incorrect and has been provided instructions for doing so.   

9.  The applicant's claim of entitlement to the Purple Heart and the supporting evidence provided were carefully considered.  However, by regulation, in order to support award of the Purple Heart, there must be evidence confirming that the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

10.  The applicant contends that he was wounded in August 2003 and was treated by medics.  However, given he may have received medical treatment and returned to duty, it must be presumed that military medical officials and the responsible members of his chain of command did not believe the injury in question was related to hostile action by the enemy, or that the circumstances under which he received his injuries supported award of the Purple Heart.  

11.  The evidence of record contains no orders, or other documents confirming that the applicant's alleged injury was caused by his participation in direct or indirect combat operations and the treatment was made a matter of official record at the time.  The evidence does not show he was ever recommended for or awarded the Purple Heart by proper authority.  Therefore, absent corroborating evidence confirming the applicant's account of how he received his injury (chain of command supporting letters, etc.), the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

12.  In view of the foregoing, there is no basis for granting the applicant's requests.





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)                                         AR20080010580



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