IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100010825 


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, item 24 (Character of Service) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 June 2004 be changed to honorable; item 26 (Separation Code) be corrected to show "JFR" or "JHJ"; item 28 (Narrative Reason for Separation) be corrected to show "Disability Other" or "Unsatisfactory Performance"; and item 
29 (Dates of Time Lost During This Period) be corrected to show "None."  He also requests a second award of the Armed Forced Expeditionary Medal (AFEM); payment for the proper BAH/VHA [Basic Allowance for Housing/Variable Housing Allowance] zip code; payment for 77.5 days accrued leave; and that his SGLI [Servicemembers Group Life Insurance] be converted to VGLI [Veterans Group Life Insurance].  

2.  The applicant states:

* Item 24 should be corrected to show honorable per discharge orders and National Guard Bureau Form 55
* Items 26 and 28 should be corrected to show "JFR" Disability Other or "JHJ" Unsatisfactory Performance
* Three years prior to his discharge he was diagnosed with several medical conditions
* He was never given a Medical Evaluation Board (MEB) per regulations
  


3.  The applicant states he submitted his request for continued VGLI coverage with payment prior to 120 days after separation.  The check was cashed on 
18 October 2004 but he later received a letter stating his request was received too late and he would have to submit proof of good health.  Since he was diagnosed with cancer and numerous medical conditions while on active duty this was no longer a possibility or option.  He claims his discharge orders informing him there was a 120 day deadline to convert insurance before having to prove good health is dated 27 October 2004 which was already past the 120 days following separation. 

4.  The applicant states he was incorrectly paid BHA/VHA for zip code 67401 (Salina, KS) for his entire period of service despite his transfer to BHA/VHA zip code 66614 (Topeka, KS) in June 2002.  His dependent status on his Leave and Earnings Statement (LES) did not change until a few months before his separation. 

5.  The applicant states he doesn't believe he was offered counsel or an opportunity to address issues, he still maintains he was not notified of the discharge procedures, he was given developmental counseling only once on 
18 February 2004, and possible separation for unsatisfactory participation was mentioned but the character of service was not addressed.  He points out his evaluation reports show he was confined to quarters for 1 year and 9 months and he was unable to perform his assigned duties due to illness.  He claims this should be considered an interruption of military service and at the very least require an MEB.  He adds he was unable to become military occupational specialty qualified and perform the Army Fitness Physical Test due to illness after 2001.  He never received and his record doesn't contain a noncommissioned officer evaluation report for 2003 to 2004 which would have shown his conditions, duty status and performance did not improve or change from the previous evaluations.  He should have had an MEB.  He was diagnosed during his enlistment with medical conditions including thyroid carcinoma in January 2002. 

6.  The applicant states all the dates of lost time shown on his DD Form 214 are in error considering his medical conditions.  He feels paragraph 10-15 of Army Regulation 40-501 (Standard of Medical Fitness) applies in his case and was not observed.  He was never asked, instructed, advised, or ordered to be examined or treated at a military treatment facility during his entire enlistment until 
27 January 2004 when he was placed on medical profile.  He has numerous no duty/no work slips including several from the Department of Veterans Affairs.  He was being treated per Tri-Care Remote by civilian providers and his command 


was aware of this but still considered his medical status as absent without leave despite several physician orders.  He indicates Personnel Action forms in his service personnel record are incorrect and misleading concerning dates of lost time.

7.  With regard to his request for a second award of the AFEM, the applicant states he has orders for participation in Operation Joint Guard but the dates on the orders would correspond with Operation Joint Forge.

8.  With regard to his request for payment of 77.5 days of accrued leave, the applicant states he submitted his last LES dated 1-31 May 2004 reflecting his final pay and a balance of 77.5 days leave.  His DD Form 214 shows he had zero days of accrued leave paid.  He contends the most leave he could have taken after 31 May 2004 was 2 days. 

9.  The applicant provides a letter, dated 23 February 2010, from a Member of Congress and numerous attachments outlined in his statement.

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 requested his character of service (general discharge) be changed to honorable, award of a second award of the AFEM, and payment for 77.5 days accrued leave.  These issues were previously considered by the ABCMR on 11 June 2008 per Docket Number AR20070018868 and denied.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 



one year of the ABCMR's original decision and it has not previously been reconsidered.  The staff of the ABCMR reviewed the applicant's requests and determined his requests pertaining to his character of service, a second award of the AFEM, and payment for 77.5 days accrued leave were not received within one year of the ABCMR's original decision.  As a result, the applicant's requests pertaining to these issues do not meet the criteria for reconsideration.  Therefore, this portion of the applicant's requests will not be discussed further in these Proceedings.

3.  Having prior enlisted service in the U.S. Navy, the Naval Reserve, and the Air National Guard Reserve, the applicant enlisted in the Army National Guard on 
13 September 2000.  He was ordered to active duty in an Active Guard Reserve status on 7 August 2001.  Medical records show he underwent surgery for thyroid cancer on 9 January 2002.

4.  The facts and circumstances surrounding the applicant’s separation from active duty and his discharge from the Army National Guard are not available.  However, a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 June 2004 shows he was discharged under honorable conditions (a general discharge) on 2 June 2004 under the provisions of Army Regulation 137-178 (it appears this should be Army Regulation 135-178), chapter 12-1b, for acts or patterns of misconduct.  He had served 2 years, 
4 months, and 18 days of creditable active service.  

5.  Item 10 (SGLI Coverage Amount) of the applicant's DD Form 214 shows he had $250,000 worth of SGLI coverage.  Item 26 on his DD Form 214 shows the entry "JKA."  Item 28 shows the entry "ACTS OR PATTERNS OF MISCONDUCT."  Item 29 shows the entry "20031220-20040126; 20040130-20040216; 20040305-20040602."  

6.  Discharge orders, dated 27 October 2004, show the applicant was honorably discharged from the Army National Guard on 2 June 2004 under the provisions of National Guard Regulation 600-200, paragraph 8-26e(2), for acts or patterns of misconduct. 

7.  In support of his request to amend item 29 on his DD Form 214, the applicant provided:

* three Department of Veterans Affairs (DVA) excuse from work forms beginning on 21 November 2003 through 11 December 2003
* DVA fax, dated 11 December 2003, sent to his unit on 12 December 2003 stating he would not be able to return back to work until he was done with medical care
* neurosurgeon no work slip, dated 11 February 2004, advising no work until recovered from scheduled surgery on 16 February 2004 with his commanding officer personally called and cancelled after receiving the document
* medical slip, dated 5 February 2004, stating "Charles is advised to be off work"

8.  In support of his request for payment of the proper BAH/VHA zip code, the applicant provided:

* LES dated 1-31 August 2001 which shows BAH (single) and BAH zip code 67401
* DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters and/or Variable Housing Allowance), dated 1 November 2002, changing his basic allowance for quarters type to "With Dependents" his duty location is shown as Topeka KS (zip code 66619-0086)  
* LES dated September 2003 which shows BAH (single) and BAH zip code 67401
* LES dated May 2004 which shows BAH (with dependents) and VHA zip code 67401  

9.  On 19 January 2007, the Army Discharge Review Board denied the applicant's request for a change in the character and/or reason for his discharge.

10.  Paragraph 12-1b (Pattern of misconduct) of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) states a Soldier may be discharged for misconduct for a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline include conduct which violates the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army.  

11.  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 designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JKA” is “Pattern of Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12b.

12.  Army Regulation 635-5-1 states the reason for discharge based on separation code "JFR" is "Disability, Other" and the regulatory authority is shown as "(To be determined)."

13.  Army Regulation 635-5-1 states the reason for discharge based on separation code "JHJ" is "Unsatisfactory Performance" and the regulatory authority is Army Regulation 635-200, chapter 13.

14.  Paragraph 10-15 (Duty Restrictions) of Army Regulation 40-501 states any recommendation for restricted activity that has been made by a private physician will be reported in writing, before performing any duty.  It is the individual Soldier’s responsibility to report any medical problems immediately to the chain of command and to comply with medical restrictions.  Commanders will honor the private physician’s recommendations until the Soldier is evaluated by a military provider, and a recommended course of action is determined by a profiling officer.  Soldiers and commanders will abide by the medical restrictions and limitations documented on any profile (DA Form 3349) issued.

15.  The SGLI and VGLI programs are DVA programs.  SGLI provides full-time life insurance coverage for individuals on active duty.  SGLI is in effect for 120 days after an individual separates from active duty or the Reserves.  Individuals entitled to SGLI coverage can convert to VGLI by submitting the premium within 120 days after separating.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests items 26 and 28 on his DD Form 214 for the period ending 2 June 2004 be corrected to show separation codes/narrative reasons "JFR" (Disability, Other) or "JHJ" (Unsatisfactory Performance).  However, evidence of record shows he was released from active duty and discharged from the Army National Guard on 2 June 2004 for acts or patterns of misconduct.  In the absence of evidence to the contrary, it is presumed that all regulatory requirements were met in processing him for separation from active duty.  Since the reason for discharge based on separation code "JKA" is for a pattern of misconduct and is presumed to be correct, there is insufficient evidence on which to amend items 26 or 28 on his DD Form 214 for the period ending 2 June 2004.  His subsequent discharge from the ARNG with an honorable discharge has no bearing on the characterization of his service from his separation from active duty.

2.  The applicant contends the lost time shown on his DD Form 214 is in error considering his medical conditions and that paragraph 10-15 of Army Regulation 40-501 applies in his case.  However, paragraph 10-15 of Army Regulation 
40-501 applies to recommendations for restricted activity (medical restrictions) by a private physician for duty performance.  In the absence of evidence to the contrary, it must be presumed the information in item 29 on his DD Form 214 for the period ending 2 June 2004 is correct.

3.  The applicant states he was incorrectly paid BHA/VHA for zip code 67401 (Salina, KS) for his entire period of service despite his transfer to BHA/VHA zip code 66614 (Topeka, KS) in June 2002.  There appear to be discrepancies in the applicant's dependency status and BAH zip code on the LESs he provided during the period August 2001 to May 2004.  Therefore, the Defense Finance and Accounting Service (DFAS) should audit his account and make the necessary pay adjustments if appropriate.

4.  The applicant requests his SGLI be converted to VGLI.  However, the SGLI and VGLI programs are DVA programs and do not fall under the purview of this Board or the Department of Defense.  

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 all Department of the Army records of the individual concerned be corrected by having DFAS audit his account and make appropriate adjustments if appropriate.
 


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 amending items 26, 28, or 
29 on his DD Form 214 for the period ending 2 June 2004 or that his SGLI be converted to VGLI.  




      _________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)                                         AR20100010825





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ABCMR Record of Proceedings (cont)                                         AR20100010825



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