IN THE CASE OF:	

		BOARD DATE:	  11 December 2008

		DOCKET NUMBER:  AR20080014645 


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 his separation document, DD Form 214 (Certificate of Release or Discharge from Active Duty), be corrected to show he served 35 years of service; that he contributed to the post-Vietnam era Veteran's Educational Assistance Program (VEAP); and that he was retired for a service-connected physical disability, rated 50 percent disabled.

2.  The applicant states information wasn't submitted, forms were lost, he was not aware of the errors, and a lack of communication caused the errors.

3.  The applicant provides copies of his DD Form 214; documentation which shows that the applicant has been employed as a Federal employee and has been issued a 35-year service certificate; and documentation from the Department of Veterans Affairs (VA) which show that he was granted service connection for eight different medical conditions based on a claim received on 27 July 2006.

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 records show that he enlisted in the Regular Army on 6 February 1970 and the highest rank he achieved was sergeant first class/pay grade E-7.

3.  On 8 July 1992, the applicant was given a retirement physical examination.  The applicant was found to be medically qualified for separation with no physical profile limitations.

4.  The applicant was honorably released from active duty on 31 August 1992 for years of service and placed on the Retired List the following day.

5.  The DD Form 214 the applicant was issued shows in item 12c (Net Active Service This Period) that the applicant served 22 years, 6 months, and 25 days of active service and item 15a (Member Contributed to the Post-Vietnam Era Veteran's Educational Assistance Program) is marked "No."

6.  Army Regulation 635-200 (Personnel Separations) defines active duty as full time duty in the active military service of the United States.

7.  The Department of Defense Military Pay and Allowances Entitlements Manual, paragraph 10108, states that to calculate creditable service for basic pay, you subtract the beginning date of service from the ending date, and add 1 day for inclusive service.  The only exception is when the ending date is the last day of the month and is a date other than 30.  The end date will be changed to 30 for calculating the Soldier’s creditable service.

8.  The post-Vietnam era VEAP was established and implemented on 1 January 1977 as a contributory education program designed to replace the Vietnam era (pre-1977) G.I. Bill.  Any Soldier entering the service between 1 January 1977 and 30 June 1985 was eligible to participate in the program.  The Soldier was required to contribute between $50.00 and $75.00 (later increased to $100.00) for a minimum of 12 months during his or her period of service.  The Army matched $2.00 for each $1.00 contributed by the Soldier.  The maximum educational assistance that could be received by the Soldier was $8,100.00 for a 3-year enlistment and $7,200.00 for a 2-year enlistment.  Service must have been under honorable conditions.  The benefits aspects of the program are operated by the VA after the Soldier is released from active duty.  The Soldier’s participation in the program was evidenced by a "Yes" or "No" entry on the DD Form 214 in item 15.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, provided that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  Those Soldiers who are determined to be unable to perform their duties will be separated due to physical unfitness.

DISCUSSION AND CONCLUSIONS:

1.  The applicant entered active duty on 6 February 1970 and was released from active duty on 31 August 1992.  As such, the entry 22 years, 6 months, and 25 days was the correct entry for item 12c and there is no reason to change it.

2.  While the applicant has been employed by the Federal Government after his retirement from the Army, that time is not active duty.  As such, that time is not recorded on a DD Form 214.

3.  Since the applicant entered active duty prior to the VEAP being implemented (1 January 1977), he could not have participated in that program.  He was under the prior, more lucrative Vietnam-era G.I. Bill.  As such, item 15a is properly marked "No."

4.  As for the applicant's request for his retirement for years of service to be corrected to a retirement for physical unfitness, the applicant's retirement physical examination found him medically qualified for retention.  As such, he was not entitled to be considered by an MEB and, without an MEB, he would not have been eligible to be considered by a PEB.  As such, he was not eligible for retirement for physical unfitness.

5.  The fact that the VA granted the applicant a disability rating for service-connected medical conditions 14 years after his retirement does not in any way indicate that he had any medically disqualifying conditions when he retired.


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)                                         AR20080014645



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ABCMR Record of Proceedings (cont)                                         AR20080014645



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