BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007134 


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) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he was medically discharged.

2.  The applicant states:

* he was medically discharged because of a spinal cord injury incurred while on active duty
* he cannot receive all Department of Veterans Affairs benefits without correction of his DD Form 214 to show he was medically separated

3.  The applicant provides:

* DD Form 214
* memorandum, dated 9 August 2005, from U.S. Army Human Resources Command (HRC), Alexandria, Virginia
* two electronic mail messages
* memoranda, dated 20 March 2003 and 6 October 2004

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 was ordered to active duty from the U.S. Army Reserve (USAR) on 21 October 2003 in support of Operation Enduring Freedom.

3.  The applicant's Notification of Eligibility for Retired Pay at Age 60 (20-year letter) is dated 13 January 2005.

4.  The applicant provided a memorandum, dated 9 August 2005, from the Chief, Reserve Components Personnel Support Services Branch, HRC, which states:

* the applicant's request for release from active duty was approved
* the applicant was found to be unfit by reason of physical disability by a physical evaluation board and will be released from active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraphs 4-24b(5) and 8-9a(3), no later than 9 September 2005
* the applicant has accumulated more than 20 years of qualifying service for retirement and has been issued a 20-year letter and will not be discharged; instead, the transition center (TC) will publish a DD Form 214 and release from active duty orders separating the applicant to the USAR Control Group (Retired Reserve)
* the separation program designator code will be LBK, completion of required active service with character of service as honorable
* the U.S. Army Physical Disability Agency (USAPDA) will not transmit separate instructions for this Soldier
* in item 18 (Remarks) of the DD Form 214 the TC will enter the following statement:  "The Soldier has been separated by reason of physical disability and has elected Reserve retirement in lieu of severance; no severance pay is authorized"
* severance pay is not authorized to be paid to the applicant by the TC or the applicant's parent command
* the 8th Regional Readiness Command will separate the applicant based on the order published by the TC into the USAR Control Group (Retired Reserve)

5.  On 22 August 2005, the applicant was released from active duty.
6.  Item 18 of the applicant's DD Form 214 does not contain the entry "The Soldier has been separated by reason of physical disability and has elected Reserve retirement in lieu of severance; no severance pay is authorized."  Item 25 (Separation Authority) of his DD Form 214 shows the entry "Army Regulation 635-200, chapter 4."  Item 26 (Separation Code) of his DD Form 214 shows the entry "LBK."  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "completion of required active service."

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 provides for the discharge or release from active duty upon termination of enlistment and other periods of active duty or active duty for training.

8.  Paragraph 4-24b(5) of Army Regulation 635-40 states that based upon the final decision of the USAPDA or Army Physical Disability Appeal Board, HRC will issue retirement orders or other disposition instructions for the transfer of a Soldier who has completed at least 20 qualifying years of Reserve service, and otherwise qualifies for transfer as described in paragraph 8-9, to the Inactive Reserve on the Soldier's request.

9.  Paragraph 8-9a(3) of Army Regulation 635-40 states a Soldier not on extended active duty who is unfit because of physical disability may forfeit severance pay and be transferred to the Retired Reserve and receive nondisability retired pay at age 60 under the provisions of Title 10, U.S. Code, section 12731, if at least 20 qualifying years of service for retirement have been completed and transfer to the Retired Reserve is requested.

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 designator codes 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.

11.  Army Regulation 635-5-1 states the reason for discharge based on separation code "MFR" is "disability, other" and the regulatory authority is Army Regulation 635-40, paragraph 4-24b(5).



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention was carefully considered and appears to have merit.

2.  The evidence of record shows the applicant was found to be unfit by reason of physical disability and was released from active duty under the provisions of Army Regulation 635-40, paragraph 4-24b(5).  However, items 25, 26, and 28 of his DD Form 214 show that he was separated for completion of required active service.  Therefore, it would be appropriate to correct item 25 of his DD Form 214 to show he was discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(5); to correct item 26 to show the entry "MFR"; and to correct item 28 to show the entry "disability, other."

3.  In addition, item 18 of the applicant's DD Form 214 should be corrected to show the entry "The Soldier has been separated by reason of physical disability and has elected Reserve retirement in lieu of severance; no severance pay is authorized" as directed by the HRC memorandum.

BOARD VOTE:

___x____  ___x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  adding the entry "The Soldier has been separated by reason of physical disability and has elected Reserve retirement in lieu of severance; no severance pay is authorized" in item 18 of his DD Form 214;

	b.  deleting the entries in items 25, 26, and 28 of his DD Form 214;

	c.  adding the entry "Army Regulation 635-40, paragraph 4-24b(5)" to item 25 of his DD Form 214;

	d.  adding the entry "MFR" to item 26 of his DD Form 214; and 

	e.  adding the entry "disability, other" to item 28 of his DD Form 214.



      ___________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)                                         AR20100007134



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)