BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090018563 


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, reconsideration of his previously denied request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) issued on 28 April 1988 and amended by a DD Form 215 (Correction to DD Form 214), dated 5 June 1989, to show he continuously served on active duty from 23 December 1987 to 10 November 1988, a total of 10 months and 19 days by including the time he spent in incapacitation with pay status also requests amending his DD Form 214 by

* changing the entry in Item 12b (Separation Date This Period) from 
"88 05 10" to "88 11 10"
* changing the entry in Item 12c (Net Active Service This Period) from
"00 04 10 18" to "00 10 19"

2.  The applicant states, in effect, he was improperly released from active duty, which resulted in a loss of 179 days of active duty service credit, to which he is entitled.  He contends a letter from his Congressman, dated 15 November 1989 clearly states that the Army never released him by proper medical authority.
He also claims a letter from the Army Board for Correction of Military Records Branch of the U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, Missouri, and dated 17 August 1994, shows the Army lost his records; and then the Army had the audacity to close his incapacitation file without ever locating his records.  

3.  The applicant contends he was not medically released from active duty until 10 November 1988 and states his proof is found in Headquarters, 311th Support Command (Corps), Los Angeles, California Orders 044-002, dated 22 December 1987; which were amended by Order 110-002, dated 25 April 1988; and further amended by Order 150-024, dated 5 July 1988.  He claims the final amendment order extended the ending date of the period of active duty specified in his original orders to 10 November 1988.  The applicant does not provide copies of these orders or amendments, but provides nine DA Forms 2139 (Military Pay Voucher) two of which refer to the aforementioned orders; and seven show he was on the "Incapacitation Payroll" from 11 May 1988 through 10 November 1988 as a result of an injury or disease incurred while on Active Duty Training (ADT) for a period of 140 days.

4.  The applicant refutes the previous ABCMR finding that his record was void of any evidence "that he suffered from a disabling medical condition while on active duty that would have supported his disability separation processing through medical channels."  He contends the facts that his pay DA Forms 2139 showing his Line of Duty Investigation (LOD) was approved on 9 July 1988 and he was entitled to incapacitation pay are proof of his medical condition.  He states he submitted this evidence previously in order to receive additional retirement points, but both the ARPERCEN and the ABCMR refused to recognize the documentation.  

5.  The applicant claims he previously provided the ABCMR copies of his LOD, Medical Evaluation Board (MEB), and Physical Evaluation Board (PEB) that was not held until March 1990.  He concludes there are two separate issues to deal with:

	a.  the Army tried to illegally discharge him and ARPERCEN overruled their illegal order; and

	b.  he is trying to have 179 retirement points added to his record in recognition of additional active duty service during the period 11 May 1988 through 10 November 1988.

6.  The applicant provides the following documents in support of his application

* Congress of the United States, House of Representatives, Washington, DC, letter, dated 14 November 1989
* U. S. ARPERCEN, St. Louis, Missouri, letter, dated 17 August 1994
* Nine DA Forms 2139, rendered for an emergency cash payment and eight pay periods from 1 May 1988 through 10 November 1988

CONSIDERATION OF EVIDENCE:

1.  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 AR20080008678, on 2 October 2008.

2.  The applicant provides new evidence in the form of nine DA Forms 2139 and a new argument that he was never released by proper medical authority which was not previously considered by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's record shows he served, in both an enlisted and an officer status, in the U.S. Marine Corps (USMC) and U.S. Marine Corps Reserve (USMCR) from 14 July 1966 through 9 February 1977, and was appointed a first lieutenant in the Army National Guard (ARNG) on 10 February 1977.  He served in the ARNG until 7 February 1985, at which time he was honorably separated from the ARNG, in the rank of captain, and transferred to the United States Army Reserve (USAR).

4.  The applicant's record contains Headquarters, 311th Support Command (Corps), Los Angeles, California, Orders 044-002, dated 22 December 1987, which ordered the applicant to ADT for a period of 140 days, for duty with the 420th Transportation Center, Los Angeles, for the purpose of planning and preparation for Exercise Team Sprit 88.  His reporting date was 23 December 1987, with a projected ending date of the active duty period directed in these self-terminating orders was 10 May 1988.

5.  The applicant's record contains Headquarters, 311th Support Command (Corps), Orders 19-01, dated 22 December 1987, which attached the applicant to U.S. Army Transition Point, Oakland Army Base, Oakland, California for separation processing with a reporting date of 28 April 1988.  

6.  The applicant's record is void of any contemporaneous medical records indicating that he suffered from a disabling medical condition while on active duty that would have supported his disability separation processing through medical channels.  

7.  The applicant's record contains a DD Form 214 for the period ending 28 April 1988 and DD Form 215 correcting this DD Form 214, dated 5 June 1989.  Collectively, they show he served on active duty from 23 December 1987 through 10 May 1988, a total of 4 months and 18 days.  The DD Form 214 also shows he was released from active duty (REFRAD) at the completion of his required period of ADT with an honorable characterization of service.  Item 25 of the DD Form 214 shows the separation authority was Headquarters, 311th Support Command (Corps), Orders 044-002, dated 22 December 1987 as amended by Orders 110-002, dated 25 April 1988.  His record does not contain a copy and the applicant did not provide a copy of Orders 110-002, dated 25 April 1988. 

8.  The applicant's record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), initiated on 30 June 1988, by the Chief of the Patient Administration Division of the Silas B. Hays Army Community Hospital (ACH), located at Fort Ord, California.  This form shows the applicant "re-injured his knee while supervising transportation in Korea on the morning of 8 April 1988.
He was standing on an incline in Yong-In at the Condominium, the CTOC [Command Tactical Operations Center] for I-Corps.  The Soldier was watching the trans-loading of duffle bags from an SMP [Standard Military Platform truck] to two 5-ton trucks when his right knee popped out.  He immediately went and sat down in a CUCV [Commercial Utility Cargo Vehicle] and after a day's rest went to the 43rd MASH [Mobile Army Surgical Hospital]...the following evening because his knee was still swollen."

9.  The applicant provides nine DA Forms 2139 rendered for the pay periods and reasons indicated below:

	a.  19 July 1988, an emergency cash payment was made.  The authority cited was Headquarters, 311th Support Command (Corps), Los Angeles, California Orders 044-002, dated 22 December 1987; which were amended by Order 110-002, dated 25 April 1988; and further amended by Order 150-024, dated 5 July 1988.

	b.  1-13 May 1988, 13 days of back pay based upon Orders 044-002, dated 22 December 1987 as amended by Order 150-024, dated 5 July 1988.

	c.  11 May - 10 November 1988 (a period of six months), Incapacitation Payroll due to applicant's incapacitation as a result of an injury or disease incurred while on ADT for 140 days.  The LOD investigation was approved on 9 July 1988. 

10.  The applicant's ARPC Form 249-E shows he had accrued 20 years, 8 months and 12 days of qualifying service for retirement as of his retirement year ending date of 27 March 1989.


11.  The applicant's record contains a letter from the Congressional Coordinator of the Office of the Secretary of the Army, Washington, DC, dated 24 October 1989, and addressed to a Member of Congress in response to his inquiry on behalf of the applicant regarding his entitlements.  The Congressional Coordinator informed the Member of Congress that since the applicant's re-injury of 8 April 1988, Public Law 99-661 dictated his entitlements and as a result:

	a.  he must demonstrate lost civilian compensation and show the he was unfit for military duty during those periods he wished to claim.

	b.  since he was in a transient status between the time his orders terminated on 10 May 1989, and his move to Charleston, West Virginia, the burden of proof fell on the applicant to show lost civilian compensation.

	c.  since he collected incapacitation pay from 11 May 1988 through 11 November 1988, he was not eligible for drill pay during that time period.

	d.  his receipt of the incapacitation entitlement disqualified him from active duty pay during this time period.

12.  The applicant's record contains a letter, dated 31 October 1989, wherein the Member of Congress informed the applicant he had received a response to his inquiry to the Department of the Army on the applicant's behalf and he would continue to monitor the progress of the applicant's claim.  The Member of Congress also provided him a copy of the aforementioned response, dated 24 October 1989.

13.  The applicant's record contains another letter from the Congressional Coordinator of the Office of the Secretary of the Army, Washington, DC, dated 2 November 1989, and addressed to the same Member of Congress as a final response to his aforementioned inquiry on behalf of the applicant regarding his medical care at DeWitt ACH (DACH) at Fort Belvoir, Virginia.  In this letter, the Congressional Coordinator informed the Member of Congress:

	a.  officials at DACH stated the applicant's allegation that he had never been released by proper medical authority was true.

	b.  the applicant's multiple moves to other areas had caused a delay in procedures, thus precluding a final medical disposition of his case.


	c.  the applicant's monthly follow-up case as acknowledged by the Veterans Administration (VA) Hospital in Los Angeles, California, was interrupted by his move to another state, at which time the VA was unable to contact him at his home unit to arrange for disposition of his case.

	d.  the applicant's knee injury prohibited him from fully performing his military duties.  Until treatment, convalescence, and final evaluation were completed, Army medical authorities could not make a final decision regarding the disposition of his case.

	e.  possible alternatives were that the applicant could be found fit for duty or that he could be referred to a board that would evaluate his eligibility for disability compensation.

	f.  the applicant was treated at DACH on 15 May and 27 June 1989.  He was admitted for surgery on 1 August and discharged on 4 August 1989; received follow-up care on 15 September and 16 October 1989; and was scheduled for a return visit in early December, at which time a disposition would probably be made.

	g.  the applicant's allegation that personnel at DACH told him he was qualified for a waiver by the Department of the Army for incapacitation pay was unsubstantiated.  He was advised that in order to receive incapacitation pay beyond the maximum six-month period, his unit would have to submit additional medical documentation to higher headquarters substantiating his request.

14.  The applicant's record contains (and he also provides) a letter, dated 15 November 1989, wherein the Member of Congress informed the applicant he had received a response to his aforementioned inquiry to the Department of the Army on the applicant's behalf.  He reiterated the portion of the response that stated the applicant had "never been released by proper medical authority" and stated their next task was to find out what his duty status was from May 1988 until then.  The Member of Congress also provided him a copy of the aforementioned response, dated 24 October 1989.

15.  The applicant's record contains a DA Form 3349 (Physical Profile), dated 6 December 1989, which shows the applicant was diagnosed with degenerative arthritis in his right knee and issued a profile limiting his physical activity as follows

* No running
* Walk at own pace and distance
* May perform alternate events for physical training and physical training test purposes

16.  The applicant's record contains a Medical Evaluation Board (MEB) Narrative Summary (NARSUM), dated 19 January 1990, and a DA Form 3947 (Medical Evaluation board Proceedings), dated 15 January 1990, which show an MEB was conducted at DACH, Fort Belvoir, Virginia to evaluate the applicant's chief complaint of right knee arthritis and additional conditions.  After consideration of clinical records, laboratory findings, and physical examination the board found that the applicant had the following medical conditions and/or defects which originated during the years shown

* Post traumatic degenerative arthritis in his right knee, 1986
* Low back dysfunction, approximately 1986
* Hypertension, 1981
* Sinus disorder, approximately 1987
* Post traumatic shock disorder, approximately 1985
* Hallux rigidus, approximately 1966

17.  The NARSUM and DA Form 3947 also show the attending physician noted the applicant's condition prevented him from running, jumping, marching, and twisting and opined he was unable to perform the duties of his military occupational specialty and unable to pass the Army Physical Fitness Test.  As a result, the attending physician opined the applicant was unfit for duty and referred his case to a Physical Evaluation Board (PEB) for final disposition in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  The applicant indicated he did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retentions, Retirement, or Separation); agreed with the findings and recommendation of the board; and authenticated the DA Form 3947 with his signature on 15 February 1990.

18.  Only two pages of the applicant's DA Form 199 (Physical Evaluation Board Proceedings) are contained in his available records.  These pages show, on 22 March 1990, the PEB found the applicant physically unfit for continued service, recommended a combined disability rating of 10 percent, and determined he should be separated with severance pay if otherwise qualified.  On 3 April 1990, the applicant having been advised of the findings and recommendations of the PEB, and had received an explanation of the results of the findings and recommendations and legal rights pertaining thereto; concurred and waived a formal hearing of his case and authenticated this form with his signature.

19.  The applicant's record contains a memorandum he received from the Chief of the Physical Evaluation Branch, Soldier Support Division, U.S. ARPERCEN, St. Louis, Missouri, dated 15 July 1994, informing him a review of his medical records by the appropriate Department of the Army authority revealed he did not meet the standards for retention in the USAR and or entry on active duty.  As a result, he was afforded 60 days wherein he had to elect either discharge from the Army Reserve, transfer to the Retired Reserve, or request a waiver for retention.
The applicant elected to be transferred to the Retired Reserve.

20.  The applicant provides a letter he received from the Chief, of the Army Board for Correction of Military Records Branch of the U. S. ARPERCEN, St. Louis, Missouri, dated 17 August 1994, in response to an application he had submitted for correction of his military records.  She informed the applicant, in pertinent part, that despite their best efforts, they had been unable to locate his military records.

21.  The applicant's record contains U.S. Army Human Resources Command, St. Louis, Missouri, Orders P12-692398, dated 5 December 2006, showing he was retired and placed on the Army of the U.S. Retired list in the retired grade of major on 30 January 2007.

22.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) prescribes policies and implements statutory authorities regarding incapacitation pay for Reserve Component (RC) Soldiers.  The objective of the RC Incapacitation System is to compensate, to the extent permitted by law, members of the RC who are unable to perform military duties and/or who demonstrate a loss in civilian earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty and to provide the required medical and dental care associated with the incapacitation.

23.  Army Regulation 135-381 also provides members authorized incapacitation pay will not be allowed to attend inactive duty training (IDT) periods or to acquire retirement points for drills.  A Soldier attending IDT and performing military duties may be evidence that they are not suffering from a disability that entitles them to incapacitation pay.  However, a member may earn retirement points in order to satisfy the requirements for a qualifying year of retirement by completing correspondence courses.

24.  Army Regulation 135-381 also provides incapacitation pay will be paid only during the period a member remains unfit for military duty or demonstrates a loss of earned income as a result of the incapacitation.  Payment in any particular case may not be made for more than six months without review of the case by appropriate headquarters.  

25.  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 also establishes standardized policy for preparing and distributing the DD Form 214 and for issuing DD Forms 215.  Chapter 2 contains preparation instructions for the 
DD Form 214.  The instructions for completing Item 12b state, in pertinent part, to enter the Soldier's transition date.  The instructions for Item 12c state, in pertinent part, to enter the amount of service this period, which is computed by subtracting Item 12a (Date Entered Active Duty This Period).  There are no provisions for correcting or altering a DD Form 214 to add active duty service credit for service not actually performed on active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Item 12b and Item 12c of his 1988 DD Form 214 and/or DD Form 215 should be corrected to show he remained on active duty through 10 November 1988, and to credit him with this additional active duty service was carefully considered and determined to lack merit.

2.  Evidence shows the applicant was ordered to ADT for a period of 140 days commencing 23 December 1987 and ending 10 May 1988.

3.  The applicant's record is void of any contemporaneous medical records indicating that he suffered from a disabling medical condition while on active duty that would have supported his disability separation processing through medical channels.  

4.  The applicant's record includes a properly constituted DD Form 214, as amended by a DD Form 215 issued on 5 June 1989, which shows the applicant served on active duty for 4 months and 18 days, from 23 December 1987 through 10 May 1988, and these separation documents carry with them a presumption of regularity in the separation process.  

5.  The earliest documented evidence of the applicant sustaining an injury during this period of active duty (either contained in the applicant's record or provided by him) was rendered on 30 June 1988, by the Chief of the Patient Administration Division of the Silas B. Hays ACH; 51 days after he was released from active duty.

6.  Evidence shows the applicant received medical treatment and as a result of his medical condition, he was placed on the Incapacitation Payroll for the period 11 May 1988 through 10 November 1988.

7.  The applicant is asking to have his record modified to show he was serving on active duty during the six-month period of 11 May 1988 through 10 November 1988, for which he received incapacitation pay.

8.  Army Regulation 135-381 provides incapacitation pay will be paid only during the period a member remains unfit for military duty or demonstrates a loss of earned income as a result of the incapacitation.  This regulation also provides members authorized incapacitation pay will not be allowed to attend IDT periods, to acquire retirement points for drills, or perform any active duty military duties.  Therefore, it would be inappropriate to modify the applicant's record to show he served on active duty during the period he was in an incapacitation pay status.

9.  Further, it is clear he was released from active duty at the completion of his required ADT.  By regulation, the DD Form 214/215 will document active duty service completed.  There are no regulatory provisions that allow for documenting active duty service not actually performed on these separation documents.  Therefore, absent any evidence to the contrary, there is an insufficient evidentiary basis to grant the requested relief. 

10.  Evidence shows the applicant underwent the MEB and PEB process subsequent to his tour of active duty and ultimately elected to retire from the USAR based upon his completion of sufficient qualifying service in lieu of accepting a discharge with disability severance pay.

11.  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 failed to submit evidence satisfying this requirement.  Therefore, he is not entitled to the requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080008678, dated 2 October 2008.



      _______ _   _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)                                         AR20090018563





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ABCMR Record of Proceedings (cont)                                         AR20090018563



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