IN THE CASE OF:	

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090015515 


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:

	a.  correction of his records to show he was medically discharged instead of honorably discharged;

	b.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

		(1)  items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) to show his rank/grade as specialist four (SP4)/E-4 instead of private (PV2)/E-2.

		(2)  item 16 (High School Graduate or Equivalent) to show "Yes" instead of "No"; and

	c.  a personal hearing.

2.  The applicant states he graduated from high school at Arsenal Technical High School in Indiana.  He also states he enlisted as a PV2/E-2, but upon release from active duty he was an SP4/E-4.  He concludes that if the doctors had taken care of him during basic combat training at Fort Jackson, SC, he would not be having a medical issue now.

3.  The applicant provides a copy of his DD Form 214, dated 25 February 1982, and a copy of high school transcripts, dated 8 February 2010, 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 Indiana Army National Guard (ARNG) in the rank/grade of private (PVT)/E-1 on 9 April 1980.  Item 22 (Education) of his DD Form 1966 (Application for Enlistment - Armed Forces of the United States) shows he attended Arsenal Technical High School from 1977 to the date he enlisted but had not completed high school.

3.  He subsequently entered active duty for training (ADT) on 18 June 1981, completed basic combat and advanced individual training, and was awarded military occupational specialty 57E (Laundry and Bath Specialist).  He was honorably released from ADT on 25 February 1982 to the control of his ARNG unit.

4.  His DD Form 214 shows he completed 8 months and 8 days of creditable active service.  This form also shows:

	a.  items 4a and 4b, his rank and grade as PV2/E-2;

	b.  item 12h (Effective Date of Pay Grade), the entry "81  12  18"; and

	c.  item 16, he was not a high school graduate at the time this form was issued.

5.  Item 17 (Civilian Education and Military Schools) of his DA Form 2-1 (Personnel Qualification Record) shows he attended Arsenal Technical High School and completed high school in 1981.

6.  Item 18 (Appointments and Reductions) of his DA Form 2-1 shows he was promoted to PV2/E-2 on 18 December 1981, private first class/E-3 on 3 March 1983, and SP4/E-4 on 19 August 1984.
7.  There is no indication in his available medical records that he suffered an illness/injury or any medical condition or was issued a physical profile that rendered him unable to perform his duties or warranted his entry into the Physical Disability Evaluation System (PDES).

8.  He continued his service in the Indiana ARNG until 8 November 1985 when he was discharged with a character of service of general by reason of unsatisfactory performance.

9.  He submitted a copy of his high school transcripts issued on 8 February 2010 that show he graduated from high school in June 1981.

10.  Army Regulation 635-5 (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.  It is important that information entered on the form should be complete and accurate.  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 and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Items 4a and 4b show the active duty rank and pay grade at time of the Soldier's separation from the Soldier's records.  Item 12 shows the Record of Service.  Item 12h, obtained from the most recent promotion order (or reduction instrument), shows the effective date of promotion to the current pay grade.  Item 16 shows whether a Soldier has or has not completed high school or equivalent.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army PDES 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 (MEBD), 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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

12.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Army Regulation 635-40, appendix B, modifies those provisions of the rating schedule inapplicable to the military and clarifies rating guidance for specific conditions.

13.  Army Regulation 15-185 governs operations of the Army Board for Military Corrections (ABCMR).  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically discharged.  He also contends that his rank/grade and education should be corrected and requests a personal hearing.

2.  With respect to the personal hearing, his request was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board. 
Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by him is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  With respect to his education, the evidence of record shows at the time he enlisted in the ARNG, he was not a high school graduate.  However, prior to entering ADT in June 1981, he had graduated from high school.  His DD Form 214 erroneously lists him as a non-high school graduate and should be corrected to show he was a high school graduate.

4.  With respect to his rank/grade, the evidence of record shows that at the time he entered ADT in June 1982, he was a PVT/E-1.  He was promoted to PV2/E-2 on 18 December 1981 and held this rank/grade at the time of his release from active duty on 25 February 1982 which is correctly shown on his DD Form 214.  He was promoted to PFC/E-3 and SP4/E-4 after his release from active duty.  Therefore, there is no basis for granting him relief on this issue.

5.  With respect to the medical discharge, there is no evidence in the applicant's records that he suffered from any illness, injury, or a medical condition that warranted his entry into the PDES.   Therefore, he was not considered by an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated for physical disability.
6.  Even if he suffered any medical condition, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X__  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the "X" from the "No" entry in item 16 of his DD Form 214 and adding an "X" to the "Yes" entry.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his rank/grade and medical discharge.



      ____________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)                                         AR20090015515



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ABCMR Record of Proceedings (cont)                                         AR20090015515



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