IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090021614 


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 correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically discharged from the U.S. Army Reserve (USAR) instead of being released from initial active duty training (IADT) following completion of her training in order to make her eligible to receive benefits from the Department of Veterans Affairs (DVA).

2.  The applicant states, in effect, she was released from active duty following the completion of her IADT in March 1999.  She continued to serve in the USAR until she was officially discharged in June 2005.  She further states she became pregnant and she was also diagnosed with cancer in 1999.  She attests the DVA is denying her healthcare benefits due to the fact her DD Form 214 shows she was released from IADT.

3.  The applicant provides copies of her DD Form 214 and her 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.  The applicant's records show she enlisted in the USAR on 23 February 1998 for a period of 8 years.  She was subsequently ordered to IADT on 6 October 1998.  Following completion of basic combat and advanced individual training, she was awarded military occupational specialty 38A (Civil Affairs Specialist).  She was honorably released from IADT to the control of her USAR unit on 19 March 1999.  Block 25 (Separation Code) of her DD Form 214 contains the entry "MBK," indicating she had completed a period of required active duty service.  Block 28 (Narrative Reason for Separation) shows the narrative reason for her release from IADT was "Completion of Initial Active Duty Training."  The DD Form 214 also shows she completed 5 months and 14 days of creditable active service.  

3.  Based upon her enlistment in the USAR on 23 February 1998 for a period of 8 years, her expiration term of service (ETS) date was established as 23 February 2006.

4.  Review of the Integrated Web Services (IWS) database maintained by the U.S. Army Human Resources Command, St. Louis, MO (USAHRC-STL) shows:

	a.  On 8 February 2005, USAHRC-STL published orders M-02-500529 ordering the applicant to active duty in support of Operation Iraqi Freedom (OIF) for a period not to exceed 545 days with a reporting date of 20 March 2005.

	b.  The applicant submitted an appeal to be exempted from mobilization which was referred to the Command Surgeon.

	c.  The Command Surgeon recommended the applicant report to the mobilization site as ordered.

	d.  The applicant appealed this decision and also submitted documentation to show she was divorced, she had primary custody of her daughter, and she did not have a viable Family Care Plan (FCP) because there was no one who could care for her daughter during her absence if she was mobilized.

	e.  The commanding officer disapproved the applicant's exemption request, but granted her a 75-day delay from her original reporting date.  As a result, her original mobilization orders were revoked and USAHRC-STL published new orders with a reporting date of 5 June 2005.

	f.  The applicant appealed this decision and provided additional documentation demonstrating she did not have a viable FCP.

	g.  On 15 June 2005, The Adjutant General granted the applicant exemption from mobilization and directed her involuntary discharge for the convenience of the Government due to dependency based upon her inability to obtain a viable FCP.  As a result, her mobilization orders were revoked.

5.  USAHRC-STL Orders D-06-521128, dated 23 June 2005, show the applicant was honorably discharged from the USAR on 24 June 2005 under the authority of Army Regulation 135-178 (Enlisted Administrative Separations) 8 months prior to her 23 February 2006 ETS date.

6.  The applicant's record is void of any evidence and she has not provided any evidence showing she was diagnosed with cancer at any time during her period of service.  She also has not provided any evidence of any specific injury or medical condition that would have rendered her unfit for continued service.  Additionally, there is no indication in the applicant's records that she underwent a medical evaluation with subsequent referral to a medical evaluation board (MEBD) or referral to a physical evaluation board (PEB).

7.  Other than her IADT during the period 6 October 1998 through 19 March 1999, the applicant's record is void of any evidence and she has not provided any evidence showing she had a period of continuous active duty service of more than 90 days.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 her or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.



9.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The separation document is to provide the individual with a complete and accurate documentary evidence of their military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty (emphasis added) of more than 90 days to include attendance at basic and advanced training and is prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The DD Form 214 is not required for periods of less than 90 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her DD Form 214 should be corrected to show she was medically discharged from the USAR instead of released from active duty training following her completion of IADT in order to make her eligible to receive benefits from the DVA was carefully considered and determined to lack merit.

2.  The evidence of record shows the applicant entered active duty for the purpose of completing initial entry training on 6 October 1998 and she was honorably released from ADT on 19 March 1999 and returned to the control of her USAR unit.  Evidence shows she was issued a properly constituted DD Form 214 at the time of her release from ADT.

3.  The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty (emphasis added).  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

4.  The applicant's record is void of any evidence and she has not provided any evidence showing she had a period of continuous active duty service of more than 90 days.  Therefore, she is not entitled to be issued an additional DD Form 214.

5.  The applicant's record is void of any evidence and she has not provided any evidence showing she was diagnosed with any specific injury or medical condition that would have rendered her unfit for continued service.  Additionally, there is no indication in the applicant's records that she underwent a medical evaluation with subsequent referral to an MEBD or referral to a PEB.  Therefore, it would not be appropriate to issue her any separation documentation showing she was medically discharged from the USAR.


6.  In the absence of any medical evidence to the contrary, administrative regularity is presumed in the applicant's separation process.  Furthermore, the applicant has failed to overcome the presumption of fitness.  The presumption is overcome if the applicant can show, through a preponderance of evidence, that because of a disability, she was physically unable to perform adequately the duties of her office, grade, rank or rating prior to her separation from the Army.

7.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for benefits that are available to Soldiers who served honorably.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any 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)                                         AR20090021614



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ABCMR Record of Proceedings (cont)                                         AR20090021614



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