IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100020590 


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 of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show information relating to his service-connected disability.

2.  He states:

* he is unable to receive service-connected disability from the Department of Veterans Affairs (VA) due to the lack of information on his DD Form 214
* in effect, item 9 (Date of Birth) of his DD Form 214 was improperly entered
* his military service records were destroyed in a fire in 1973

3.  To attain clarification of his request, per telephone conversation with applicant on 9 February 2011, he is requesting that his record be further corrected by:

* Correcting his date of birth on his DD Form 214
* Documenting injuries he sustained while on active duty
* Correction his DD Form 214 to show he received an honorable discharge

4.  He provides:

* an Honorable Discharge Certificate, dated 1976
* his DD Form 214, dated 1 May 1972
* a VA Form 21-4138 (Statement in Support of Claim), dated 1 March 2001
* a memorandum from the VA, dated 25 February 1992
* four Standard Forms (SFs) 509 (Progress Notes)
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.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  He believes his records were lost or destroyed in that fire.  However, there were sufficient documents for the Board to conduct a fair and impartial review of this case.  The primary record available to this Board is the applicant's DD Form 214 with an effective date of separation of 1 May 1972.

3.  The applicant's available military records show he was inducted into the Army of the United States on 11 August 1970.

4.  Item 5 (Date of Birth) of his DA Form 47 (Record of Induction) lists his date of birth as 26 October 1950.

5.  His available record contains an SF 88 (Report of Medical Examination) that shows:

* item 5 (Purpose of Examination) – separation
* item 6 (Date of Examination) – 29 April 1972
* items 18-40 (Clinical Evaluation) – normal
* item 73 (Notes) – "I am [in] good health" followed by the applicant's signature
* item 77 (Examinee) – is qualified for separation

6.  His SF 88 does not show that he was injured or treated for any injuries or illnesses while on active duty.

7.  On 1 May 1972, he was honorably released from active duty (REFRAD) and transferred to the U.S. Army Reserve Control Group (Annual Training) after serving a total of 1 year, 8 months, and 21 days.  His DD Form 214 contains the following information:

	a.  item 9 (Date of Birth) – "12 MAR 72" and

	b.  item 11c (Reason and Authority) of his DD Form 214 shows the entry "early separation of overseas returnee."

8.  He submitted an Honorable Discharge Certificate showing he was discharged on 10 August 1976.

9.  His official record contains Reserve Components Personnel and Administration Center Orders 07-1142264, dated 28 July 1976, showing he was discharged from the Standby Reserve on 10 August 1976.

10.  His VA Form 21-4138 shows he submitted a claim to the VA Medical Center on 1 March 2001 for service-connected post-traumatic stress disorder.

11.  He submitted four Standard Forms 509 showing he received a psychiatric evaluation and treatment for post-traumatic stress disorder, depression, paranoid personality disorder, and schizophrenia from 8 June 1992 through 2 December 1992.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.

13.  Army Regulation 635-5 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.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The regulation has no provisions for documenting injuries on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his DD Form 214 should be corrected to show:

* information relating to a service-connected disability was carefully considered
* his correct date of birth 
* he received an honorable discharge
* injuries he sustained while on active duty

2.  The evidence of record shows his date of birth is 26 October 1950.  Therefore, item 9 of his DD Form 214 should be corrected to show his date of birth as "26 OCT 50."

3.  His available records show he was honorably REFRAD after completing his required active service and honorably discharged from the USAR after completing his service remaining obligation, neither by reason of physical disability.  There is no evidence showing he was unfit to perform his military duties upon or prior to his separation.

4.  The evidence he submitted shows he sought medical treatment and was diagnosed with post-traumatic stress disorder, depression, paranoid personality disorder, and schizophrenia in 1992, 20 years after he was REFRAD.  

5.  The DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  The applicant's DD Form 214 already shows he received an honorable characterization of service upon his REFRAD.  His subsequent honorable discharge occurred after the period covered by the DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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.  deleting "12 MAR 72" from item 9 of his DD Form 214 and

	b.  adding "26 OCT 50" to item 9 of his DD Form 214.

2.  The Board further determined 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 correction of his DD Form 214 to show he was separated with a service-connected disability, to document any injuries, or to show he received an honorable discharge.




      _______ _   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)                                         AR20100020590



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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