IN THE CASE OF:	

		BOARD DATE:	  06 May 2010

		DOCKET NUMBER:  AR20090015201 


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 item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 December 2003 be changed.

2.  The applicant states:

* his DD Form 214 shows his release as "Completion of Required Active Service" and should be corrected to indicate he was released due to being medically unfit or the equivalent
* he was activated under Federal orders on 1 October 2003 for Operation Iraqi Freedom and then released and sent back to his Reserve unit on 26 December 2003 to await a Medical Evaluation Board because he was medically unfit
* he was discharged from the North Carolina Army National Guard due to being medically unfit and he is currently being denied Department of Veterans Affairs (DVA) education benefits because his DD Form 214 does not show the true reason he was released from active duty (for being medically unfit)
* during his train-up he had prior injuries aggravated that caused the doctors (after a few MRIs and x-rays) to indicate the need for his release from active duty because he was not medically fit to serve
* this is the only reason he was released from active duty, it was not completion of required service
* he was only approximately 83 days into a 14-month deployment   

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 December 2003
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Army National Guard discharge orders   

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.  Having prior active service in the U.S. Marine Corps, the applicant enlisted in the North Carolina Army National Guard on 24 March 2000 and trained as an infantryman.  

3.  Orders, dated 6 October 2003, show the applicant was ordered to active duty on 1 October 2003 in support of Operation Iraqi Freedom for a period not to exceed 730 days.   

4.  On 26 December 2003, the applicant was released from active duty under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.   

5.  Orders, dated 21 January 2004, show the applicant's active duty orders were amended to show his period of active duty was not to exceed 87 days (1 October 2003 to 26 December 2003).

6.  Item 25 (Separation Authority) on the applicant's DD Form 214 for the period ending 26 December 2003 shows the entry, "AR [Army Regulation] 635-200, 


CHAP [chapter] 4."  Item 26 (Separation Code) on this DD Form 214 shows the entry "LBK."  Item 28 (Narrative Reason for Separation) on this DD Form 214 shows the entry "COMPLETION OF REQUIRED ACTIVE SERVICE.”

7.  The applicant was issued a permanent profile for back pain and neck pain on 2 May 2004.

8.  There are no other medical records available.

9.  On 15 June 2004, the applicant was honorably discharged from the North Carolina Army National Guard for being medically unfit for retention.

10.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “LBK” is “Completion of Required Active Service” and the regulatory authority is Army Regulation 635-200, chapter 4.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to active duty on 1 October 2003 for a period not to exceed 730 days.  It is acknowledged that his active duty orders were subsequently amended to show his period of active duty was not to exceed 87 days and he was released from active duty on 26 December 2003 for completion of required active service.  Six months later, he was discharged from the Army National Guard as being medically unfit for retention.

2.  The applicant's medical records and medical separation packet from the Army National Guard is not available.  There is no evidence to show he was given a physical profile while he was on active duty.  There is no evidence to show a line of duty investigation was done concerning the injuries he contends aggravated a previously-existing condition.  There is no evidence to show exactly when that previously-existing condition was aggravated.

3.  Unfortunately, there is insufficient evidence at this time that would warrant changing the narrative reason for separation used in the applicant's case. 



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)                                         AR20090015201





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ABCMR Record of Proceedings (cont)                                         AR20090015201



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