IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090008228 


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, amendment to Item 23 (Type of Separation), Item 25 (Separation Authority), and Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

2.  The applicant states, in effect, that those items should be amended to show "Active Duty."  He was on active duty and had at least 180 days of active duty service.  The new regulation on the requirements for active duty service was implemented in August 1980 and he signed his contract in April 1980.  Therefore, his contract should not come under the new regulation.  He gladly served with pride and honor and fulfilled his obligation.  Making these changes can help him to be a better citizen of this country.  

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and copies of his DD Form 214 and his mental health progress notes. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, this correction to the applicant's DD Form 214 which prevents him from receiving medical treatment at Department of Veterans Affairs (VA) hospitals. 

2.  Counsel states, in effect, the applicant served honorably in the Army Reserve/Guard and was on active duty from 11 April through 3 November 1980.  
The applicant is presently homeless and disabled and has sought medical services without success at a VA hospital.  The reason for his denial for treatment is based on a regulation which changed the active duty entitlement date establishing services for active duty veterans in August 1980.  The applicant contends that he signed his contract in April 1980 and he should be exempt from this regulation and allowed to receive medical services at VA facilities.  He presently is eligible for emergency and humanitarian services only.  The applicant is grateful for these services; however, due to his disability, substance abuse issues, and homelessness, he is financially unable to afford treatment outside a VA hospital.  

3.  Counsel further states that the applicant has struggled, but he has remained drug free for the past two years.  He has been able to gain entry into a shelter which houses veterans and non-veterans and he has observed the effective results of veterans receiving substance abuse treatments and therapy through work in the Compensated Work Therapy Program.  The applicant has applied for Social Security benefits, but so far he has met with negative results.  The applicant feels that if he is provided the opportunity to receive treatment by waiver or correction of time frame dates to establish services at a VA hospital it would improve his self-esteem, enhance his ability to obtain employment, and leave the ranks of the homelessness.  Although this veteran served only on active duty for training (ADT), he did serve honorably and he without doubt would benefit from these services and become a productive citizen.  The goal of this veteran is not to become dependent on others, but to have his pride and dignity restored through the assistance of the country he served faithfully.  

4.  Counsel provides no additional documentation in support of the applicant's application. 

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 he enlisted in the U.S. Army Reserve (USAR) in pay grade E-1 on 9 April 1980.  He was ordered to ADT and he entered active duty on 11 April 1980.  He completed basic combat and advanced individual training and was assigned military occupational specialty (MOS) 76D (Materiel Supply Specialist).  He was advanced to the rank/grade of private (PV2)/E-2 on 11 October 1980.

3.  The applicant was honorably released from ADT on 3 November 1980 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 5-15, by reason of completion of MOS training.  He was transferred back to his USAR unit at Montgomery, AL.  He was credited with 6 months and 23 days of net active service this period.  He was issued a DD Form 214 that shows in Item 21 Item 23, "Release from ADT;" in Item in 25, "Para[graph] 5-15, A[rmy] R[egulation] 635-200;" and in Item 28, "Release from IADT [Individual ADT] Upon Completion of MOS TRNG [training]."

4.  The applicant enlisted in the Alabama Army National Guard (ALARNG) on
9 May 1984 and he served continuously until he was honorably separated from the ALARNG and as a Reserve of the Army on 1 September 1989 under the provisions of National Guard Regulation 600-200, paragraph 8-26r by reason of alcohol or other drug abuse rehabilitation failure.  

5.  The applicant submits a copy of his mental health progress notes, dated 27 October 2008, that shows he was seen at the Tuskegee VA Medical Center for bipolar mood disorder, substance abuse, borderline personality traits, and rehabilitation medicine.

6.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-15 provided, in part, for the discharge of Reserve Component personnel ordered to IADT under the Reserve Enlistment Program (REP 63).  Commander of training installations were authorized to release Reserve component personnel upon completion of MOS training when training was completed prior to the period of time specified in IADT orders provided a minimum period of 12 weeks of IADT had been completed.

7.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated, in pertinent part, that the DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from the active Army.  A DD Form 214 would also be prepared for all personnel of the USAR and the ARNG released after completion of 90 days or more of ADT or full-time training duty.
  
8.  The 2009 Edition of the VA "Federal Benefits for Veterans and Dependents" booklet provides the basic eligibility requirements for VA Health Care.  It provides, in pertinent part, that Reserve and ARNG members may also quality for VA health care benefits if they were called to active duty (other than for training only) by Federal orders and completed the full period for which they were called or ordered to active duty.  The minimum duty requirements for veterans enlisted after 7 September 1980 or who entered active duty after 16 October 1981, must have served 24 continuous months of the full period for which they were called to active duty in order to be eligible.  The VA requires the completion of 180 days of active duty to determine eligibility for many of its benefits.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to amendment to Items 23, 25, and 28 of his DD Form 214.  The applicant and counsel have not shown error, injustice, or inequity for the relief they now seek.

2.  The evidence of record shows the applicant entered on IADT on 11 April 1980.  He completed his training, he was awarded an MOS, and he was released from IADT and transferred back to his Reserve unit on 3 November 1980.  He completed a period of 6 months and 23 days of net active service.  There is no evidence the applicant served on active duty for any other period of his military service.

3.  The applicant and counsel have failed to show through the evidence submitted with the application or the evidence of record, that the Type of Separation, Separation Authority, and Narrative Reason for Separation annotated on his DD Form 214 were incorrect.  Pertinent regulations, in effect at the time of the applicant's enlistment in the USAR and after, show that the type of separation and narrative reason for separation from active duty were appropriate for the reason for his discharge.

4.  The applicant and counsel might be confusing the requirements of basic eligibility, minimum duty requirements for VA health care benefits, and the completion of 180 days of active duty to determine eligibility for many of its benefits.  However, even if this is the case, there is no error on the applicant's DD Form 214.  To be eligibility for VA health care benefits, Reserve and ARNG members must have been called to active duty, other than ADT (emphasis added).

5.  The applicant and counsel did not submit evidence to show he was improperly denied VA medical benefits as a result of the entries on his DD Form 214.

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

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)                                         AR20090008228



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ABCMR Record of Proceedings (cont)                                         AR20090008228



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