IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100018780 


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 to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his narrative reason for separation was due to disability and to show his rank as First Sergeant (1SG) and these awards:

* Combat Action Badge
* Joint Service Commendation Medal
* Meritorious Service Medal
* Meritorious Unit Commendation
* Global War on Terrorism Expeditionary Medal (GWOTEM)

2.  The applicant states he served in Iraq from 28 April 2003 to 5 March 2004 where he injured his back.  When he returned to Fort Bragg, he was told he had to out-process and demobilize.  He states he was told to report his back injury to his U.S. Army Reserve (USAR) unit and/or seek assistance from the Department of Veterans Affairs (VA).  He states he was medically evaluated by the USAR and was found medically disqualified for continued service by a physical evaluation board (PEB).  He was then reassigned from the active reserve to the Retired Reserve.  These actions have resulted in the loss of 30 percent of his Post 9-11 GI Bill benefits.  He states in order for him to receive 100 percent of his Post 9-11 GI Bill benefits his record must be changed to show he was separated from active duty due to a disability after completion of 30 days of continuous active duty.  He states that in fairness and in recognition of his many years of service, the Board should honor his request.



3.  The applicant provides these documents:

* DD Form 214 with a separation date of 2 April 2004
* Medical Evaluation Board Proceedings, dated 4 April 2006
* PEB, dated 25 April 2006
* Orders 06-290-00064, dated 17 October 2006
* Memorandum, dated 11 May 2006, transferring him to the Retired Reserve
* Orders C349-84, dated 15 December 2005, awarding him Combat Action Badge
* Special Order CPA-65, dated 18 June 2004, awarding him the Joint Service Commendation Medal with citation and certificate
* Permanent Order C333-06, dated 29 November 2005, with DA Form 638 (Recommendation for Award)
* Meritorious Unit Commendation certificate and orders for 490th Civil Affairs Battalion
* Memorandum, dated 20 May 2004, highlighting requirements for award of GWOTEM

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, an enlisted Soldier in the USAR, mobilized and entered active duty on 7 March 2003 in support of Operation Enduring Freedom.  His personnel service record shows his military occupational specialty was 63Z5O (Mechanical Maintenance Supervisor).  He served in Kuwait from 14 April through 29 April 2003, then in Iraq from 29 April 2003 to 5 March 2004.

3.  Within the applicant's record, maintained in the interactive Personnel Electronic Records Management System (iPERMS), is filed a DA Form 2166-8 (NCO Evaluation Report [NCOER]) for the period February 2003 to January 2004 that states he was able to perform his duties without physical limitations.  A second NCOER for the period February 2004 to January 2005 shows he had a physical profile, dated September 2004, that prohibited him from taking the standard Army Physical Fitness Test.  However, it also states that his physical profile did not hinder his abilities to perform the duties of his military occupational specialty. 

4.  Prior to his redeployment, the applicant developed acute low back pain when he caught a duffle bag thrown off a truck at the Baghdad International Airport.  He was physically examined at the local field hospital and treated with pain medications, released for duty, and redeployed with his unit.  

5.  On 2 April 2004, he was honorably released from active duty upon the completion of his period of required active service and transferred to his USAR troop program unit, the 490th Civil Affairs Battalion stationed at Abilene, TX.  He was issued a DD Form 214 showing he served 1 year and 26 days of active federal service during this period of mobilization.  He completed 7 months and 27 days of total prior active federal service and 20 years, 10 months, and 1 day of total prior inactive service.  The authority for his separation was Army Regulation 635-200, chapter 4.

6.  His DD Form 214 for this period shows in item 4a (Grade, Rate or Rank) "MSG" [master sergeant] and in item 4b (Pay Grade) "E8."  There were no permanent orders in his personnel service record awarding him the special skill identifier "M" to indicate he was a 1SG.

7.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of this DD Form 214 shows these awards:

* Bronze Star Medal
* Army Commendation Medal (4th Award)
* Army Achievement Medal
* Army Reserve Components Achievement Medal (5th Award)
* National Defense Service Medal (2nd Award)
* Kosovo Campaign Medal
* Armed Forces Reserve Medal with Mobilization Device (2nd Award)
* Armed Forces Reserve Medal (2nd Award)
* Noncommissioned Officer's Professional Development Ribbon (Numeral 3)
* Army Service Ribbon
* Army Reserve Components Overseas Training Ribbon
* North Atlantic Treaty Organization Medal
* Driver and Mechanic Badge with Driver Bar

8.  Department of Defense, Coalition Provisional Authority, Baghdad, Iraq, Special Order CPA-65, issued on 18 June 2004, shows he was awarded the Joint Service Commendation Medal for meritorious service. 

9.  As a member of a troop program unit, he sought medical treatment for back pain and was examined at Dyess Air Force Base, TX where he had a magnetic resonance imaging (MRI) on 24 June 2004.  A radiologist reviewed the MRI and determined the applicant had six lumbar–type vertebral bodies instead of five, the normal variant.  He had desiccation and protrusion of the L4-L5 disc centrally and slightly to the left with effacement of the cal sac.  At the L5-L6 (S1) disc levels, there was compression and a degenerative change, but no significant lateralizing encroachment.  He also had at the L6 (S1)-S1 level a rudimentary disc that was degenerative with the central protrusion into the epidural fat.  The medical examiner determined surgical care was not warranted. 

10.  On 15 September 2005, an Army radiologist found the applicant had degenerative disc changes at the L4-5 level, at the L5-S1 level, and at the S1-2 level.  The radiologist also found disc desiccation with small left paracenter disc protrusion at the L1-2 level, mild bilateral L5-S1 facet joint hypertrophy and six lumbar type vertebral bodies within the inferior most vertebral body referred at the S1.

11.  On 22 September 2005, the applicant received an "L-3" lower extremities (L)  permanent profile for low back pain.  This profile shows he could not run 2 miles or do pushups, could not construct an individual fighting position, could not do a three to five second rush under direct or indirect fire, and that he was nondeployable.  The profile stated the applicant did not meet retention standards in accordance with Army Regulation 40-501, chapter 3 and directed he go before a medical evaluation board (MEBD) to determine his fitness for duty. 

12.  On 29 November 2005, the applicant had a general medical examination.  Within the narrative summary of this medical report it states, "HE HAS A PRIOR VA DISABILITY OF 30 PERCENT, 10 PERCENT FOR HEARING AND 20 PERCENT FOR HIS LOWER BACK."  

13.  Permanent Orders C349-84 issued by Headquarters, U.S. Army Civil Affairs and Psychological Operations Command on 15 December 2005 awarded the applicant the Combat Action Badge.   

14.  On 22 March 2006, the applicant signed a memorandum stating he had reviewed his MEB packet to include the DA Form 3947 (Medical Evaluation Board Proceedings), the accompanying narrative summary, and DA Form 3349 (Physical Profile).  
15.  On 7 April 2006, an MEBD convened and found him medically unacceptable for duty in accordance with Army Regulation 40-501, paragraph 3-39(c) due to multilevel desiccated disc disease with herniated nucleus pulposus with impingement on multiple level nerve roots.  His hearing loss was found to be within medically acceptable standards.  He was referred to a PEB.

16.  On 26 April 2006, a PEB convened and found the applicant physically unfit and recommended a combined rating of 0 percent for chronic back pain due to multilevel degenerative disc disease, without neurologic abnormality, with thoracolumbar range of motion limited by pain.  As his hearing loss was not found unfitting by the MEBD, it was not rated by the PEB.  Disposition determined by the PEB was separation with severance pay.
 
17.  On 1 May 2006, the applicant signed the DA Form 199 (PEB Proceedings) concurring with the PEB decision.  In a separate memorandum, the applicant elected to be transferred to the Retired Reserve pursuant to the authority contained in Title 10, U.S. Code, section 1208 with entitlement to apply for Reserve retirement upon reaching the age of 60.  In addition, he stated, "I FULLY UNDERSTAND THAT THIS ELECTION IS FINAL AND CONCLUSIVE FOR ALL PURPOSES AND MAY NOT BE SUBSEQUENTLY CHANGED."

18.  Effective 19 July 2006, the applicant was released from his USAR unit and assigned to the Retired Reserve by reason of "MEDICALLY DISQUALIFIED – NOT RESULT OF OWN MISCONDUCT" pursuant to Orders 06-290-00064 issued by Headquarters, U.S. Army Civil Affairs and Psychological Operations Command.

19.  Headquarters, U.S. Army Civil Affairs and Psychological Operations Command, Permanent Order C333-06, issued on 29 November 2006, shows the applicant was awarded the Meritorious Service Medal upon retirement from the Army Reserve for the period 1 November 1995 to 1 November 2005. 

20. Department of the Army General Order Number 3 issued on 6 November 2004 awarded the 490th Civil Affairs Battalion the Meritorious Unit Commendation for the period 28 March 2003 to 15 March 2004.

21.  References:

   a.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides for the medical treatment facility commander with the primary care responsibility to evaluate those referred to him and will, if it appears as though the Soldier is not medically qualified to perform duty or fails to meet retention criteria, refer the Soldier to an MEB.  Those Soldiers who do not meet medical retention standards based on the criteria in Army Regulation 40-501 will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

	b.  Army Regulation 600-8-22 (Military Awards) states the Global War on Terrorism Service Medal (GWOTSM) is authorized for award to members of the Armed Forces of the United States who have participated in Global War on Terrorism operations outside of the areas of eligibility (AOE) designated for award of the Global War on Terrorism Expeditionary Medal, Afghanistan Campaign Medal, or Iraq Campaign Medal.  All Soldiers on active duty, including Reserve Component Soldiers mobilized or National Guard Soldiers activated, on or after 11 September 2001 to a date to be, determined having served 30 consecutive days or 60 nonconsecutive days are authorized the GWOTSM.  

	c.  Army Regulation 600-8-22 states the GWOTEM is authorized for award to members of the Armed Forces of the United States who deployed abroad for service in the Global War on Terrorism operations on or after 11 September 2001 to a date to be determined.  The general area of eligibility (AOE) encompasses all foreign land, water, and air spaces outside the 50 states of the United States and outside 200 nautical miles of the shores of the United States in operations approved by the Secretary of Defense.  Under no conditions will units or personnel within the United States or the general region excluded above be deemed eligible for the GWOTEM. 

	d.  Army Regulation 600-8-22 further states service members must be assigned, attached, or mobilized to a unit participating in designated operations for 30 consecutive days or 60 nonconsecutive days in the AOE, or meet other, specified criteria.  Initial award of the GWOTEM was limited to service members deployed abroad in Operations Enduring Freedom and Iraqi Freedom in designated specific geographic areas of eligibility (AOE), including Kuwait.

	e.  Army Regulation 635-5 (Separation Documents), effective 30 September 2000, provided that a DD Form 214 must be prepared for all Soldiers at the time of their retirement, discharge, or release from active duty service or control of the Active Army.  It is a summary of a Soldier’s most recent period of continuous active duty.   It provides a brief, clear-cut record of active duty service.  This regulation establishes the standardization policy for preparing and distributing the DD Form 214 to include the use of proper source documents in the preparation of the DD Form 214.  The source documents include the Soldier's enlisted record 


brief, separation approval authority documentation, separation order, and any other document authorized for filing in the Soldier's official military personnel file to include award orders verified in the Soldier's records.  Further guidance provides that the Soldier's grade, rate or rank will be the active duty grade or rank and pay grade at time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was released from active duty in April 2004 upon the completion of his mobilized period of service.  He has not provided evidence to show he was medically evaluated and found unfit for duty prior to separation.  Based on the evidence of record, the applicant was not found medically unfit until after he had separated from active duty and returned to his USAR troop program unit.  His NCOER for the period ending January 2004 stated he was able to perform his duties without physical limitations.  His NCOER for the period ending January 2005 stated he had a physical profile, but this profile did not hinder his abilities to perform the duties of his military occupational specialty.  Therefore, the evidence shows he was not unfit for duty at the time of his release from active duty.

2.  Based on the applicant's active service in support of Operation Enduring Freedom and deployment to Kuwait and Iraq he is entitled to correction of his record to show award of the GWOTEM and the GWOTSM.  

3.  Orders announced award of the Combat Action Badge and Joint Service Commendation Medal for his period of active service.  Therefore, he is entitled to a correction of his record to show these two decorations.

4.  The applicant's unit was awarded the Meritorious Unit Commendation during a qualifying period of service when he was assigned to the unit.  Therefore, he is entitled to correction of his record to show this award. 

5.  He was awarded the Meritorious Service Medal upon retirement from the USAR which was after his separation from active duty.  Therefore, he is not entitled to correction of his DD Form 214 to show this award it was awarded for an extended period of service in the USAR.

6.  As for the applicant's request to show he was a 1SG, he has not submitted and his record does not contain orders laterally appointing him as a 1SG.



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 adding these awards to item 13 of his DD Form 214:

* Combat Action Badge
* Joint Service Commendation Medal
* Meritorious Unit Commendation
* GWOTEM
* GWOTSM

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 changing his narrative reason for separation to disability, correcting his record to show he separated in the rank of 1SG, and award of the Meritorious Service Medal.  




      
      ____________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)                                         AR20100018780



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ABCMR Record of Proceedings (cont)                                         AR20100018780



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