IN THE CASE OF:	  

		BOARD DATE:	        25 August 2009

		DOCKET NUMBER:  AR20090006480 


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 his discharge date from the U.S. Army Reserve (USAR) be changed from 31 August 2001 to 23 February 2003 because he was discharged under disability and had served for 20 years.  He also requests this Board help him get his RN (Registered Nurse) college degree from a civilian college and review his educational and experience credentials for retirement points. 

2.  The applicant states that he enlisted in the Pennsylvania Army National Guard (PAARNG) in April 1983 and stayed in an enlisted status, either on active duty or the inactive Reserve and/or ARNG, including attending college and being in the Individual Ready Reserve (IRR), for a total of 20 years.  He also states that he completed an Army-funded Associate of Science degree in Registered Nursing in 1997, but he is unable to receive this degree.

3.  The applicant provides a copy of his DA Form 2-1 (Enlisted Qualification Record); a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 January 1984; a copy of his DD Form 689 (Individual Sick Call Slip), dated 20 November 1999; a copy of his DA Form 3286-68 (Statement of Enlistment), dated 22 July 1994; a copy of his DA Form 5454-R (Request for Army/American Council on Education Registry Transcripts), and copies of various academic transcripts, computer printouts, grade reports, certificates, diplomas, and licenses, in support of his request.



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 record shows he enlisted in the PAARNG on 30 April 1983.  He subsequently entered active duty for training (ADT) on 21 June 1983, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  He was honorably released from ADT to the control of his ARNG unit on 13 January 1984.  He was assigned to Headquarters Company, 109th Infantry, Scranton, PA.

3.  On 4 September 1987, by certified/registered delivery mail, the applicant's immediate commander notified the applicant that he was absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) for the period 14, 15, and 16 August 1987.  The immediate commander also notified the applicant that five (5) unexcused absences within one year would subject him to possible order to active duty.   He was also provided with an opportunity to explain and/or provide justification for the unexcused absences.  However, the mailed envelope shows the applicant refused delivery of this letter and that it was returned to sender.

4.  On 8 December 1987, the applicant’s immediate commander initiated separation action against the applicant under the provisions of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).  The immediate commander indicated that the applicant had 26 consecutive periods of absence without leave (AWOL) including being AWOL during annual training from 7 November 1987 through 22 November 1987.  His intermediate and senior commanders recommended approval of his separation.


5.  On 30 November 1987, Headquarters Company, 109th Infantry, published Orders 9-2 reducing the applicant from SP4/E-4 to private (PV2)/E-2, for inefficiency, under the authority of paragraph 6-43 of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).

6.  On 1 February 1988, the applicant was discharged from the ARNG.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of service) he was issued shows he was discharged with a character of service of general, by reason of unsatisfactory participation.  He was transferred to the USAR Control Group (Annual Training) 

7.  On 26 April 1989, the U.S. Army Reserve Personnel Center, St. Louis, MO, published Orders D-04-036227, directing the applicant’s discharge from the USAR effective 29 April 1989.  

8.  After a break in service, the applicant enlisted in the USAR for a period of 6 years in the rank/grade of private first class (PFC)/E-3 on 22 July 1994.  Item 1 of his DA Form 3286-68 shows he enlisted for a civilian acquired skill for MOS 91C (Practical Nurse).  He was subsequently awarded primary MOS 91C and secondary MOS 91B.  He was initially assigned to the 309th Field Hospital, Boston, MA, but was later voluntarily released and reassigned to the 345th Combat Support Hospital, Jacksonville, FL, and the 3297th U.S. Army Hospital, Fort McPherson, GA.

9.  On 1 March 1997, the applicant executed a 7-month extension of his enlistment in the USAR and on 8 February 2001, he again executed a 12-month extension in the USAR.  

10.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his records show that on 17 August 2001, Headquarters, 81st Regional Support Command, Birmingham, AL, published Orders 229-013L honorably discharging the applicant from the USAR, effective 31 August 2001, under the provisions of Army Regulation 135-178 (Enlisted Administration Separation).  

11.  The applicant’s medical records are not available for review with this case.  However, the applicant submitted a copy of an individual sick call slip, dated 20 November 1996, that shows he was seen for a routine illness and/or sickness. 




12.  There is no indication in the applicant’s records that he suffered an injury and/or illness that would have warranted his entry into the Physical Disability Evaluation System (PDES).  Furthermore, there is no indication that the applicant’s records that he was issued a permanent physical profile or that he was evaluated by a medical evaluation board (MEBD) or that he was referred to a physical evaluation board (PEB). 

13.  Army Regulation 635-40 (Physical Evaluation Disability System) 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 AR 40-501 (Standards of Medical Fitness), chapter 3.  

14.  Chapter 8 of Army Regulation 635-40 outlines the rules for processing through the disability system for Soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training.  Paragraph 8-2 states that Soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

15.  Paragraph 8-6 states that when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation.  Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the Soldier’s unit commander for disposition under applicable regulations.

16.  Paragraph 8-9 states in pertinent part that a Soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc. 

17.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

19.  Title 10, U. S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge date should be changed to 23 February 2003 because he was discharged under disability and that he had served for 20 years.  He also contends that this Board should help him get his degree and review his educational and experience credentials for retirement points. 

2.  With respect to the applicant’s discharge date, the applicant’s record is void of the facts and circumstances surrounding his discharge.  However, his official records contain a copy of discharge orders, issued by Headquarters, 81st Regional Support Command, Birmingham, AL, on 17 August 2001, honorably discharging him from the USAR, effective 31 August 2001.  In the absence of evidence to the contrary, it must be presumed that his discharge was accomplished in accordance with applicable regulation and there does not seem to be a reason to change his discharge date.

3.  With respect to the applicant’s disability, Soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.  This determination is made through the PDES. There is no evidence available to indicate the applicant underwent an MEBD and/or PEB to evaluate his physical condition against the physical requirements of his particular office, grade, rank or rating or to make findings and recommendation to establish his eligibility to be separated or retired because of physical disability or that he should have been referred to an MEB and/or PEB.

4.  With respect to the applicant’s retired points, the ABCMR considers individual applications that are properly brought before it and in appropriate cases it directs or recommends correction of military records to remove an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  If the applicant is claiming that his Retirement Points History Statement is incorrect and does not show all of his qualifying service for non-regular 

retirement, he must contact the Commander, U.S. Army Human Resources Command (HRC), ATTN: AHRC-PSR, 1 Reserve Way, St. Louis, MO 63132-5200 for correction of this form.  

5.  With respect to the applicant’s college degree, again, this Board corrects Army records and this action is not within its purview.  The applicant is advised to contact the college/university with regard to this issue.

6.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to an honorable discharge.  

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)                                         AR20090006480





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ABCMR Record of Proceedings (cont)                                         AR20090006480



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