IN THE CASE OF:	  

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090018276 


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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by:

   a.  adding "knee disability" to block 18 (Remarks); and 
   
   b.  deleting "NO" from block 15 (Member Contributed to Post-Vietnam Era Veterans' Educational Assistance Program (VEAP) and adding "YES."
   
2.  The applicant states that due to his DD Form 214 being improperly documented, he has not received fair service connected disability compensation or been allowed to participate in the VEAP.

3.  The applicant provides no supporting documentation.

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 enlistment documents do not include a Post-Vietnam Veterans' Educational Assistance Program (VEAP) election form nor does his record contain any subsequent documentation that shows his participation in VEAP.  

3.  The applicant enlisted in the Regular Army for 4 years on 20 February 1980.  He completed the training requirements and was awarded military occupational specialty (MOS) 73C (Finance Specialist).  He was also awarded secondary MOS 74D (Computer/Machine Operator).

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice as follows:

	a.  on 29 August 1980, for possession of marijuana;

	b.  on 9 March 1981, for failure to go to his appointed place of duty; and

	c.  on 5 May 1981, for failure to go to his appointed place of duty.

5.  On 23 April 1981, the applicant was removed from his duties in the Travel Section for repeated errors in the classification of vouchers for advances of temporary duty funds.  

6.  On 26 May 1981, he was relieved of duty in the finance office for failure to follow orders and maintain acceptable work performance.

7.  The applicant was processed for separation under Army Regulation
635-200, paragraph 5-31 under the Expeditious Discharge Program (EDP).  On
22 June 1981, the discharge authority approved his EDP separation and directed that he receive an honorable characterization of service.

8.  The applicant was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) on 26 June 1981 under Army Regulation 635-200, paragraph 5-13, EDP due to failure to maintain acceptable standards for retention.  He completed 1 year, 4 months, and 7 days of creditable service.



9.  The applicant's DD Form 214 block 15 is annotated "NO" and block 18 does not contain any reference to a disability.

10.  The applicant's service medical records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

11.  Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the EDP.  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.  

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  In pertinent part it states block 18 is for mandatory entries when a separate block is not available and as a continuation for entries in blocks 11, 13, and 14.  Medical conditions are not authorized entries.

13.  The Post-Vietnam VEAP was a voluntary educational benefit maintained by the Department of Veterans Affairs for veterans who paid into VEAP while they were in the service.  Eligibility for VEAP requires initial entry on active duty after 31 December 1976, and before 1 July 1985; contribution to VEAP before 1 April 1987; completion of 24 continuous months of active duty; and a discharge under conditions other than dishonorable.  Eligible veterans may be entitled to as much as 36 months of training with eligibility ending 10 years after a service member is released from active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that due to the improper documenting of his DD Form 214 he has not been able to receive fair service connected disability compensation or participation in the VEAP.

2.  The record does not show and the applicant has not provided any evidence or documentation showing he participated in the VEAP.  

3.  Furthermore, he did not complete the minimum period of service to be entitled to receive VEAP benefits. 

4.  The record does not show and the applicant has not provided any evidence or documentation to show that he had an injury to his knee while on active duty.  

5.  Furthermore, even if the applicant could show he had a knee injury and he was awarded a disability evaluation by the Army the notation of the injury would not be documented in block 18 of the DD Form 214. 

6.  The applicant has submitted neither probative evidence nor a convincing argument in support of his requests.  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 this requirement.

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)                                         AR20090018276



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ABCMR Record of Proceedings (cont)                                         AR20090018276



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