IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100020478 


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, an increase in his Army disability rating.  He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show any awards he is entitled to but was not awarded, to show military occupational specialty (MOS) 74D (Chemical Operations Specialist) as his secondary MOS, and to show his date of enlistment as 13 August 1979 instead of 13 September 1979.  He further requests replacement of previously awarded medals.

2.  He states that he was discharged due to physical injuries and mental trauma and was given a 10 percent disability rating.  He disagreed with the evaluation and filed a rebuttal prior to his discharge in which he requested an increase in his disability rating.  He also included in his claim previous injuries he suffered while performing pedestrian support at a traffic control event while stationed in Germany. He states he was struck by a vehicle and thrown on the hood of the vehicle before being projected through the air and landing about 70 feet from where he was previously standing.  He landed on his right side and incurred multiple injuries.

3.  He states that the full evaluation was never finalized and he was processed out within 72 hours of being notified of his involuntary separation.  He contends that he was not afforded the complete Medical Evaluation Board (MEB) process and the medical authorities did not have his complete medical records which were missing from the time of his enlistment until November 1981.  He concludes that had he been afforded the full MEB process, he would now have recognition for the full extent of his service-connected injuries.
4.  He provides a rebuttal statement to the Department of Veterans Affairs (DVA); a DD Form 214; a Nuclear, Biological, and Chemical (NBC) Defense Instruction Certificate of Training; and an Army Achievement Medal Certificate. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not provide additional evidence or argument.

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.  He is requesting replacement of previously-awarded medals.  However, service medals and awards are not issued by the ABCMR.  He may obtain his medals by submitting a request in writing to:  National Personnel Records Center, Attn: Army Reference Branch, 9700 Page Boulevard, St. Louis, Missouri 63132-5200.  This issue will not be further addressed in this Record of Proceedings.

3.  The applicant's DD Form 4 (Enlistment/Reenlistment Document) shows he enlisted in the U.S. Army Reserve Delayed Entry Program on 27 August 1979 and in the Regular Army on 13 September 1979.  He was awarded MOS 95B (Military Police) upon completion of initial entry training.  

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status) indicates that on 25 September 1981 he suffered an "osteochondritis fragment" of the right ankle while performing Military Police duties when he was struck by a German vehicle.  The injury was found to have been incurred in the line of duty.

5.  Permanent orders show he was awarded the Army Good Conduct Medal for the period 13 September 1979 to 12 September 1982.  

6.  On 29 October 1982, he reenlisted for four years.

7.  Medical Board Proceedings, dated 12 September 1983, indicate a diagnosis of painful post-traumatic arthritic right ankle.  He was found medically unfit and was referred to a Physical Evaluation Board (PEB).  He concurred with the medical board's findings and recommendation.

8.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
20 September 1983, indicates the PEB considered his conditions and found him to be unfit for military service due to post-traumatic degenerative arthritis of the right ankle.  The PEB recommended separation from the service with severance pay with a 10 percent disability rating.  On 26 September 1983, he concurred with the PEB findings and waived a formal hearing of his case.

9.  There is no evidence in his Official Military Personnel File (OMPF) that shows he was suffering from any medical conditions, other than the condition considered by the PEB, that warranted processing through medical channels.

10.  He was discharged on 18 November 1983 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to a physical disability with severance pay.  Item 12a (Date Entered Active Duty this Period) of his DD Form 214 shows 13 September 1979.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows:

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar
* Marksman Marksmanship Qualification Badge with Pistol Bar
* Army Service Ribbon
* Overseas Service Ribbon
* Army Achievement Medal

11.  He provided a statement in which he expressed his disagreement with what appears to be DVA Rating Decisions.  He also describes a number of physical and mental disabilities he claims to be suffering.

12.  He also provided a Certificate of Training that shows he completed an 
80-hour course on NBC Defense Instruction.  This course took place from 5 April to 20 April 1982.  However, there is no evidence that shows this course was taken at an MOS producing service school or that he was awarded MOS 74D as a secondary MOS (SMOS).

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

14.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides in section 1201 for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

15.  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 and states:

	a.  the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty;

	b.  it provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge;

	c.  that for item 11, enter the MOS codes, titles, years, and months for warrant officers and enlisted personnel;

	d.  that for item 14 (Military Education), list in–service training courses; title, number of weeks, and year successfully completed during this period of service; e.g., medical, dental, electronics, supply, administration, personnel, or heavy equipment operations.  This information is to assist the member after separation in job placement and counseling; therefore, training courses for combat skills will not be listed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an increase in his Army disability rating and correction to his DD Form 214 to show any awards he is entitled, to show MOS 74D as his secondary MOS, and to show his date of enlistment as 13 August 1979 instead of 13 September 1979 has been carefully reviewed.

2.  Records show he was separated for an unfitting medical condition; however, this condition only warranted a 10 percent disability rating.  It is noted that the applicant was hit by the car in September 1981; he felt sufficiently fit to reenlist in October 1982, and his MEB/PEB proceedings did not start until around September 1983.  There is no evidence in his OMPF and he provided none, showing he suffered from any additional medical conditions that warranted processing through medical channels.  Therefore, there is insufficient evidence to show his PEB disability rating was incorrect or that his separation with severance pay was not in compliance with law and regulation.  

3.  He contends that his DD Form 214 should be corrected to show his date of enlistment as 13 August 1979; however, his DD Form 4 shows he enlisted in the Regular Army on 13 September 1979.  Therefore, he is not entitled to have his DD Form 214 corrected to show a different date of entry into active duty.

4.  Evidence shows he completed an NBC Defense Instruction course and that this course took place from 5 April to 20 April 1982.  While there is insufficient evidence to add MOS 74D as an SMOS to item 11 of his DD Form 214, it would be appropriate to add this course to item 14 of his DD Form 214.

5.  Permanent orders show he was awarded the Army Good Conduct Medal. Therefore, he is entitled to correction of his DD Form 214 to show this award.

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:

	a.  adding to item 14 of his DD Form 214 the entry "Nuclear, Biological, and Chemical Defense Instruction, 2 weeks, 1982; and

	b.  adding to item 24 of his DD Form 214 the Army Good Conduct Medal.

2.  The Board further determined that the evidence presented was 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 granting an increase of his Army disability rating, adding a secondary MOS of 74D to his DD Form 214, or correcting his DD Form 214 to show he entered active duty on 13 August 1979.




      _______ _  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)                                         AR20100020478



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ABCMR Record of Proceedings (cont)                                         AR20100020478



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