IN THE CASE OF:
BOARD DATE: 29 July 2010
DOCKET NUMBER: AR20100007332
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 new DD Form 214 (Certificate of Release or Discharge from Active Duty) to add any missing/incomplete information and to show he was medically retired.
2. The applicant states he received an incomplete DD Form 214 for the period ending 11 September 2002 and he was told he would get a new DD Form 214 or DD Form 215 (Correction to DD Form 214). He contends he was injured during the period covered by his DD Form 214 and placed on the Temporary Disability Retired List (TDRL). He was later transferred to the Retired List.
3. The applicant provides a copy of the following documents:
* Headquarters, III Corps, Fort Hood, TX, Permanent Orders 136-4, dated 16 May 2002
* his DD Form 214 for the period ending 11 September 2002
* U. S. Army Physical Disability Agency (USAPDA), Washington, DC, Orders D123-01, dated 3 May 2006
* National Guard Bureau (NGB) Form 23C (Army National Guard Retirement Points History Statement, Application for Retirement Pay), dated 17 May 2006
* NGB Form 22 (Report of Separation and Record of Service), for the period ending 18 May 2006
* DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), dated
1 November 2006
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated
3 August 2007
* USAPDA Orders D310-06, dated 5 November 2007
* DD Form 363A (Certificate of Retirement), dated 6 November 2007
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 applicants 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 applicants 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 DD Form 214 for the period ending 11 September 2002, shows that items 12d (Total Prior Active Service) and 12e (Total Prior Inactive Service) are incomplete. The remarks section indicates that a DD Form 215 will be issued to provide this missing information. The state Adjutant General is the appropriate authority to complete this action. Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.
3. The applicants records show he enlisted in the U.S. Army Reserve (USAR) for a period of 3 years on 30 September 1992 and he transferred to the Texas Army National Guard (TXARNG) on 8 December 1992.
4. Permanent Orders 136-4, issued by Headquarters, III Corps, Fort Hood, TX, dated 16 May 2002, ordered the applicant's unit to proceed on Temporary Change of Station (TCS) to While Sands Missile Range in White Sands, NM in support of Operation Noble Eagle per Title 10, U.S. Code, section 12302. He was subsequently honorably released from active duty to the control of his ARNG unit on 11 September 2002. Item 18 (Remarks) of his DD Form 214 shows he was ordered to active duty in support of Operation Enduring Freedom.
5. On 16 September 2005, he was issued a permanent physical profile for lumbar spine fusion L4/L5, left shoulder pain, and bilateral knee degenerative joint disease (DJD) and referred to an MEBD.
6. On 11 January 2006, an MEBD convened at Darnall Army Community Hospital, Fort Hood, and found that his medical conditions rendered him unable to fulfill the requirements of his military occupational specialty (MOS) and recommended his referral to a PEB.
7. A PEB apparently found the applicant unfit for retention and on 16 May 2006, he was released from duty because of physical disability incurred as a result of injury while entitled to receive basic pay and placed on the Temporary Disability Retired List.
8. On 5 September 2007, a PEB convened at Fort Sam Houston, TX, and reevaluated his medical records and sworn testimony. Based on review of the TDRL reexamination, the PEB found he remained unfit to reasonably perform the duties required by his previous grade and specialty. The PEB recommended that he be permanently retired with a combined disability rating of 30 percent (%).
9. On 5 November 2007, the USAPDA published Orders D310-6 removing him from the TDRL and permanently retiring him in the rank/grade of sergeant first class (SFC)/E-7, effective 5 November 2007.
10. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states the DD Form 214 is a summary of a Soldiers most recent period of continuous active duty. For a Reserve Soldier ordered to active duty enter in item 18 the statement ORDERED TO ACTIVE DUTY IN SUPPORT OF (OPERATION NAME) PER 10 USC (applicable section)."
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that the narrative reason for separation of his
DD Form 214 be changed to show he was medically retired was carefully considered; however, there is no basis to grant relief.
2. The DD Form 214 is meant to be a record of a Soldiers most recent period of continuous active service. The evidence shows he enlisted in the TXARNG on
8 December 1992 and he entered active duty on 5 May 2002 in support of Operation Noble Eagle. He was released from active duty on 9 September 2002 and transferred to his ARNG unit. He served in the ARNG until he was appropriately issued orders placing him on the TDRL and subsequently removing
him from the TDRL and placing him on the Retired List. There is no evidence which shows he served in an active duty status after 9 September 2002, and as such, there is no basis to amend the September 2002 DD Form 214. In accordance with regulatory guidance, he was issued a properly-constituted DD Form 214 upon his release from active duty.
3. Furthermore, he was not recommended for a permanent disability retirement until after his period of active service; therefore, his type of separation (Release from Active Duty) and narrative reason for separation (Completion of Required Active Service) as shown on his DD Form 214 are correct.
4. In view of the foregoing, there is no basis for granting this portion of the applicant's request.
5. However, item 18 of his DD Form 214 shows he was ordered to active duty in support of Operation Enduring Freedom, which is incorrect. Permanent orders ordered the applicant to proceed on TCS with his ARNG unit in support of Operation Noble Eagle. Therefore, item 18 should be corrected accordingly.
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 the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by deleting from item 18 of his DD Form 214 for the period ending 11 September 2002 the entry "ORDERED TO ACTIVE DUTY IN SUPPORT OF OPERATION ENDURING FREEDOM IAW 10 USC 12302" and replacing it with the entry "ORDERED TO ACTIVE DUTY IN SUPPORT OF OPERATION NOBLE EAGLE IAW USC 12302."
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 a medical retirement.
__________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) AR20100007332
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