IN THE CASE OF:	  

		BOARD DATE:	        27 October 2009

		DOCKET NUMBER:  AR20090007595 


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 reconsideration of his previous application for a medical retirement.  

2.  In multiple applications, the applicant requests that the following corrections be made to his DD Form 214 (Certificate of Release or Discharge From Active Duty), dated 23 July 1982.  In effect, correct the:

   a.  separation program designator (SPD) code; 

   b.  reentry eligibility (RE) code; and 
   
   c.  narrative reason for separation.

3.  The applicant requests that item 27 (Reenlistment Code) of his DD Form 214 with a separation date of 20 October 1980 be changed.  

4.  He requests that he be promoted to the rank of sergeant/pay grade E-5.

5.  The applicant also requests that his NGB (National Guard Bureau) Form      22 (Report of Separation and Record of Service) and his NGB Form 55A (Honorable Discharge from the Federal Recognized ARNG [Army National Guard]) be corrected.  


6.  The applicant states that his commander made a mistake on his DD Form 214 because of a discrimination complaint.

7.  The applicant provides several supplemental letters containing duplicate copies of excerpts from his military records; Leave and Earning Statements (LES) from Defense Finance and Accounting Service (DFAS); and two letters from the 412th Engineer Command, Office of the Inspector General (IG), Devens Branch, Devens, MA.

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080019884 on 12 May 2009.

3.  The applicant now provides new arguments in support of his previous request and he raises new issues that require reconsideration.  

4.  Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates states that the Board will not consider any application if it determines that an applicant has not exhausted all administrative remedies available to them.  

5.  National Guard Regulation 600-200 (Enlisted Personnel Management) provides, in paragraph 8-18 (Amendments and corrections to NGB Form 22), that when it is determined from official records that an NGB Form 22 contains an error or omission of pertinent facts, discharge authorities may issue an NGB Form 22A (Correction of NGB Form 22, Report of Discharge and Record of Service).  There is no evidence that the applicant has requested that the Massachusetts Army National Guard (MAARNG) corrections his NGB 22 and his NGB Form 55A.  He must first submit his request to the Adjutant General of the MAARNG.  Therefore, these issues will not be discussed further in these proceedings.

6.  The applicant initially enlisted in the MAARNG on 9 April 1980.  He entered a period of initial active duty for training (IADT) on 18 June 1980 and was released from IADT on 20 October 1980 and issued a DD Form 214.  Item 27 of the DD Form 214 contains the entry "NA" (not applicable).  He was discharged from the MAARNG on 29 December 1980.  He had completed 8 months and 21 days in the MAARNG.

7.  The applicant enlisted in the Regular Army on 23 February 1981.  He was discharged on 23 July 1982 by reason of unsuitability - personality disorders.  He had completed 1 year, 5 months, and 23 days of active service that was characterized as honorable.  He was assigned the SPD code "JMB," an RE code of "RE-3," and the narrative reason was "Unsuitable - Personality Disorders."  The SPD code of "JMB" was defined in Army Regulation 635-5-1 (SPD’s), then in effect.  This regulation specified the narrative reason for SPN JMB as "Unsuitability - Personality Disorder."  The applicant's separation processing documents were not available for review.

8.  On 27 October 1986, the applicant enlisted in the New York Army National Guard (NYARNG).  He had completed a period in the inactive National Guard (ING) from 1 February to 1 July 1987.  He was discharged from the NYARNG on 26 October 1987.  He had completed 1 year of service in the NYARNG.

9.  On 30 November 1987, the applicant enlisted in the NYARNG and he was discharged on 29 November 1988.  He had completed 1 year in the NYARNG.

10.  The applicant enlisted in the MAARNG on 28 September 1989 and he was discharged on 27 September 1991.  He had completed 2 years in the MAARNG.

11.  On 9 December 1992, the applicant enlisted in the MAARNG and he was discharged on 1 November 1995 by reason of unsatisfactory participation.  He had completed 2 years, 10 months, and 23 days in the MAARNG.

12.  On 21 August 1996, the applicant enlisted in the MAARNG and he was promoted to specialist/pay grade E-4 on 23 January 1999.  He was discharged on 24 August 2003.  He had completed 7 years and 4 days in the MAARNG.

13.  On 25 August 2003, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 4 years.  
14.  A letter, from the Headquarters, 94th Regional Readiness Command, Ayer, MA, dated 10 May 2006, determined that based on the applicant's permanent profile, he did not meet medical retention standards.  The letter stated that if the applicant had completed more than 15 years but less than 20 years of qualifying service he may request transfer to the Retired Reserve for early retirement due to medical disqualification.

15.  On June 2006, the applicant indicated that he had at least 15 years, but less than 20 years, of qualifying service for retired purposes and requested transfer to the Retired Reserve.

16.  On 7 September 2007, the applicant was discharged from the USAR.

17.  There are no orders in the applicant's official military personnel file (OMPF) promoting him to pay grade E-5.

18.  The applicant's Chronological Statement of Retirement Points issued by U.S. Army Reserve Personnel Command (now known as Human Resources Command [HRC]), St Louis, MO shows the applicant completed 14 years,
7 months, and 3 days of qualifying service for retirement.

19.  A letter, dated 12 January 2009, from the 412th Engineer Command, Office of the Inspector General, Devens Branch, Devens, MA indicated the applicant was adjudicated as unfit due to non-service-related injuries.  The IG pointed out to the applicant that he did not have at least 15 qualifying years to request transfer to the Retired Reserve and to receive retired pay at age 60, but less than 20 qualifying years.  The IG advised the applicant that his best course of action was to have a recruiter get him re-evaluated physically so he could resume his military career and complete his 20 years of qualifying service in order to be eligible to receive retirement pay at age 60.

20.  A letter, dated 31 March 2009, from the 412th Engineer Command, Office of the Inspector General, Devens Branch returned, as requested by the applicant, all e-mails, from 12-26 March 2009, and documents exchanged in the course of the applicant's inquiry.  An e-mail, dated  26 March 2009, from HRC to the IG indicated the applicant was discharged following the expiration of his enlistment.  HRC also stated there is no record showing the applicant was medically discharged.  HRC stated the applicant had 14 qualifying years towards retirement and he would not be eligible for a 15-year letter if he were medically discharged.  HRC also stated the applicant could reenlist in the USAR and complete
6 qualifying years, making him eligible for a 20-year letter and authorizing him to apply for retired pay at age 60.
21.  In a letter, dated 30 April 2009, DFAS, Indianapolis, forwarded the applicant copies of his LESs covering the periods from December 2002 to December 2007.

22.  Army Regulation 635-200, then in effect, set forth the requirements and procedures for administrative discharge of enlisted personnel.  Paragraph 13-4b of this regulation provided for separation of enlisted personnel due to personality disorder when the diagnosis had been made by a physician trained in psychiatry and psychiatric diagnosis.

23.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of armed forces RE codes. 

24.  Table 3-6 of Army Regulation 601-210, then in effect, provided that RE-1 applied to persons completing an initial term of active service who were fully qualified for continued Army service when last separated and that RE-3 applied to persons not qualified for continued Army service, but the disqualification was waivable. 

25.  Table 4-1 of Army Regulation 601-210, then in effect, listed waivable moral and administrative disqualifications.  Line O of Table 4-1 provided that being separated by reason of unsuitability was a waivable disqualification.  

26.  Paragraph 3-10 of Army Regulation 601-210, then in effect, provided that 
RE codes may be changed only if they are determined to be administratively incorrect.  

27.  Army Regulation 635-5 (Separation Documents), then in effect, provided that the entry for item 27 (Reenlistment Code) of the DD Form 214 for Army National Guard members released from active duty for training was "NA" (not applicable).

28.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

29.  Title 10, U.S. Code (USC), Chapter 1223 (Retired Pay for Non-Regular Service), Section 12731 (Age and Service Requirements) provides, in pertinent part, that a person is entitled, upon application, to retired pay if the person is age 60 and has performed at least 20 years of qualifying service.  While a qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a reservist, it is a full year (365 or 366 days, as applicable) for a member of the Regular Army.

30.  Title 10, USC, Section 12731b (Special rule for members with physical disabilities not incurred in line of duty) provides, in pertinent part, that in the case of a member of the Selected Reserve of a reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of entitlement to retirement pay, determine to treat the member as having met the required 20 years of qualifying service. The Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay if the member has completed at least 15 years, and less than 20 years of qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The initial denial of the applicant's request for medical retirement was based the Temporary Early Retirement Authority (TERA) which was referenced in error.  The provisions for TERA expired on 31 December 2001, over 5 years before his discharge.

2.  Title 10 USC, Section 12731b provides that a reservist who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may be determined to be eligible for retirement pay at age 60 if they have completed at least 15 years of qualifying service.  On 10 May 2006, it was determined the applicant did not meet medical retention standards.  However, his Chronological Statement of Retirement Points shows he had only completed 14 years, 7 months, and 3 days of qualifying service.  Therefore, he is not eligible to receive retired pay at age 60 due to disability.

3.  Notwithstanding the new arguments and submissions, there is an insufficient evidentiary basis to support granting the requested relief or amending the original decision in this case.  If the applicant feels his statement of retirement points is incorrect, he may submit evidence, including LESs, to HRC St. Louis.  Points that have already been earned may be corrected administratively and does not require Board action.  If additional qualifying years are credited to the applicant and it is shown that he has at least 15 years, but not more than 20 years, of qualifying service he may request a 15-letter from HRC under the provisions of Title 10 USC, Section 12731b.

4.  The applicant was released from initial active duty for training on 9 April 1980.  Therefore, the entry "NA" in item 27 of his DD Form 214 with a separation date of 9 April 1980 is administratively correct.

5.  The applicant's separation processing documents from 1982 were not available for review.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.  Therefore, the SPD code in item 26 and the narrative reason in item 28 of his DD Form 214 with a separation date of 23 July 1982 are correct.  The reason for his discharge is a waivable disqualification.  Therefore, the assignment of an RE-3 is administratively correct.

6.  There is no evidence or official documentation that the applicant was promoted to pay grade E-5 either in the National Guard or the USAR.  Therefore, there is insufficient evidence to show he was promoted to pay grade E-5.

7.  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 has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  __X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR20080019884, dated 12 May 2009.

2.  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)                                         AR20090007595



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ABCMR Record of Proceedings (cont)                                         AR20090007595



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