IN THE CASE OF:	  

		BOARD DATE:	        21 January 2009

		DOCKET NUMBER:  AR20080017550 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the correct entries in Item 9 (Command to Which Transferred), Item 23 (Type of Separation), Item 24 (Character of Service), Item 25 (Separation Authority), Item 26 (Separation Code), Item 27 (Reentry Code), and Item 28 (Narrative Reason for Separation).

2.  The applicant states that he was told by a specialist at the U.S. Army Human Resources Command (HRC), St. Louis, Missouri, that his DD Form 214 contains conflicting codes.  He adds that his DD Form 214 shows that he was medically discharged when he was in fact proudly and honorably retired after 22 years of active service.  He also adds that he is unable to obtain an Army Knowledge on Line (AKO) account because of the incorrect codes.  

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  DD Form 214, dated 12 July 2005.

	b.  Orders 118-0021 and 150-001, issued by Schweinfurt Transition Center, Germany, on 28 April 2005 and 2 June 2005.

	c.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 14 March 2005.

	d.  DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 25 February 2005.

	e.  Medical records, dated on miscellaneous dates in 2005.

	f.  Enlisted Record Brief (ERB), dated 21 January 2005.

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 records show he enlisted in the Regular Army on 12 July 1983 and was trained in military occupational specialty (MOS) 63M (Bradley Fighting Vehicle System Maintainer).  His records also show he executed a series of extensions and/or reenlistments in the Regular Army and was promoted to sergeant first class (SFC)/E-7 on 1 September 2001.

3.  On 15 December 2004, the applicant complained of excessive daytime somnolence and depression.  He underwent a series of examinations at the U.S. Army Medical Activity (MEDDAC) in Schweinfurt, Germany, and was ultimately issued a permanent physical profile and was referred to the Army's physical disability evaluation system.

4.  On 25 February 2005, the applicant was considered by an MEB.  The MEB found that the applicant had excessive daytime somnolence and depression and that neither condition was medically acceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness). The MEB further recommended that he be referred to a PEB.  The applicant indicated that he did not desire to continue on active duty and agreed with the MEB's findings and recommendation.


5.  On 14 March 2005, an informal PEB convened at Walter Reed Army Medical Center, Washington, DC and found the applicant was physically unfit due to depressive disorder.  Based on this review, the PEB concluded that the applicant's medical condition prevented him from satisfactorily performing the duty in his grade and primary specialty.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 9435 and was granted a 10 percent disability rating.  The PEB also recommended the applicant be permanently retired for disability.  The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing of his case.

6.  On 28 April 2005, the Schweinfurt Transition Center published Orders
118-0021 releasing the applicant from active duty by reason of physical disability effective 12 July 2005 and placing him on the retired list in his retired rank of SFC effective 13 July 2005.  The orders further show the applicant's percentage of disability as 10 percent and the statute authorizing retirement as 1201 [section 1201 of Title 10, U.S. Code].

7.  The applicant's DD Form 214 shows he was honorably released from active duty on 12 July 2005 and transferred to the U.S. Army Reserve (USAR) Control Group (Retired), St. Louis, MO on 13 July 2005.  The DD Form 214 also shows that he completed 22 years and 1 day of active Federal service.  This form further shows the following entries:

	a.  Item 9 shows the entry "USAR CON GP (RET) AHRC, 1 RESERVE WAY, ST LOUIS, MO 63132" indicating that the applicant was transferred to the U.S. Army Reserve Control Group (Retired), Army Human Resources Command, St. Louis, Missouri;

	b.  Item 23 shows the entry "Retirement";

	c.  Item 24 shows the entry "Honorable";

	d.  Item 25 shows the entry "AR 635-40, PARA 4-24B(1)" indicating that he was permanently retired in accordance with paragraph 4-24b(1) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation);

   e.  Item 26 shows the entry "SFJ";

	f.  Item 27 shows the entry "4"; and

	
   g.  Item 28 shows the entry "Disability, Permanent."

8.  Army Regulation 635-40 establishes the Army physical disability evaluation system and 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

9.  Paragraph 4-24b states that the AHRC will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the U.S. Army Physical Disability Agency (USAPDA) for clarification or reconsideration when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Based upon the final decision of the USAPDA, retirement orders or other disposition instructions are issued as follows:

	a.  Permanent retirement for physical disability (see Title 10, U.S. Code, section 1201 or 1204).

   b.  Placement on the Temporary Disability Retired List (TDRL) (see Title 10, U.S. Code, section 1202 or 1205).

   c.  Separation for physical disability with severance pay (see Title 10, U.S. Code, section 1203 or 1206).

	d.  Separation for physical disability without severance pay (see Title 10, U.S. Code, section 630, 12681, 1165, or 1169).

	e.  Transfer of a Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer as described in paragraph 8–9, to the Inactive Reserve on the Soldier’s request (see Title 10, U.S. Code, section 1209).

	f.  Separation for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence (see Title 10, U.S. Code, section 1207).

	g.  Release from active duty and return to retired status of retired Soldiers serving on active duty who are found physically unfit.

	h.  Return of the Soldier to duty when he or she is determined to be physically fit.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating of at less than 30 percent.  

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  This regulation specifies 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.  For Item 9 of the DD Form 214, enter the applicable location of the Soldier's status on transition from Table 2-1 (Entry Determinations) of the same regulation.  Table 2-1 states that when the Soldier retires (including temporary and permanent disability), and is placed on the Army of the United States (AUS) retired list and is transferred to the Retired Reserve (applicable to Regular Army (RA) enlisted Soldiers with less than 30 years active Federal service (AFS) and Army National Guard (ARNG) and USAR officers and enlisted), then the entry in Item 9 will show "Retired, Army Personnel Command (AR–PERSCOM) [now known as Army Human Resources Command (AHRC)],1 Reserve Way, St. Louis, MO 63132–5200.

12.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE 1 permits immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.



13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the 
military services to assist in the collection and analysis of separation data.  The "SFJ" SPD code is the correct code for Soldiers whose narrative reason for separation is permanent disability.  Furthermore, the SPD/RE Code Cross-Reference Table, dated 31 March 2003, shows that “RE-4” is the appropriate RE code for individuals who are separated with an "SFJ" SPD code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 contains conflicting errors.

2.  The evidence of record shows that the applicant's medical condition led to a PEB that ultimately determined that his condition prevented satisfactory performance of duty in his grade and primary specialty and recommended he be permanently retired because he had over 20 years of active duty.  He was accordingly placed on the retired list in his retired rank of SFC on 13 July 2005.  His disability retirement was conducted in compliance with laws and regulation and there does not appear to be an error or an injustice.

3.  By regulation, upon his disability retirement, he was transferred to the USAR Control Group (Retired) which is correctly shown on his DD Form 214. Furthermore, his separation authority, separation code, reentry code, and narrative reason for separation appear to be correct and in accordance with applicable regulations.  There does not seem to be an error or an injustice.

4.  With respect to the AKO account, 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 go to https://www.us.army.mil to obtain information on how to register for a Full AKO Account.

5.  It cannot be determined from the evidence of record and from what the applicant provided what codes on his DD Form 214 are "conflicting."  Unless he can provide specifics on what is believed to be "conflicting," there appears to be no error on his DD Form 214.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, there is no basis to warrant the requested relief.

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.


															XXX
      ______________________
               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)                                         AR20080017550



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ABCMR Record of Proceedings (cont)                                         AR20080017550



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