IN THE CASE OF:	  

		BOARD DATE:	    15 March 2010

		DOCKET NUMBER:  AR20100021699 


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 Items 4a (Grade, Rate or Rank), 4b (Pay Grade), and 29 (Date of Time Lost During This Period) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 July 2010.

2.  He states Items 4a and 4b should be corrected with the proper rank/grade of specialist (SPC)/E-4.  He also states his DD Form 214 showing his time lost is in error.  He states the DA Form 4187 (Personnel Action) he provides shows he was advanced to SPC/E-4 with an effective date of 26 August 2009.  He enlisted in the New Jersey Army National Guard (NJARNG) on 26 May 2009 and he started basic combat training (BCT) on 26 August 2009.  He was injured during BCT as a result of a tibia stress fracture on his right leg.  He was on convalescent leave from 13 September to 11 October 2009.  He applied for an extension of convalescent leave through proper channels, but it was not granted because his certificate was from a civilian doctor.  He was placed in an absent without leave (AWOL) status, but he returned to duty on 10 November 2009.

3.  He also states he was examined by military doctors and they found he was not fully recovered from his injury and transferred him to the Physical Training and Rehabilitation Program (PTRP).  He was in the PTRP until 8 February 2010. He fully recovered from his injury and he started his BCT on 9 February 2010.  He graduated on 4 April 2010.  Then, on 21 July 2009 [sic], he finished advanced 

individual training (AIT) at Fort Lee, VA.  He attained his citizenship on 16 August 2010.  His company commander suggested he contact this Board for removal of his AWOL status.  He kindly requests removal of the AWOL status from his records and reimbursement of any pay due for that period.

4.  He provides:

* a DA Form 2173 (Statement of Medical Examination and Duty Status)
* a DA Form 31 (Request and Authorization for Leave)
* his civilian doctor's recommendation for extension of convalescent leave
* a DA Form 4856 (Developmental Counseling Form)
* an ATZJ-RCS Form 350-6-200 (U.S. Army Reserve and ARNG Liaison Counseling Form)
* a PTRP notification
* FJ Form 3349 (IET (initial entry training) Physical Profile
* a memorandum, subject:  Memorandum of Reprimand (AWOL)
* a DA Form 4187
* a DD Form 214 for the period ending 21 July 2010
* a DA Form 1559 (Inspector General (IG) Action Request)
* a self-authored letter to the IG Office
* a Memorandum for Record, subject:  Letter of Recommendation for (applicant's name and social security number)

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was awarded a Bachelor of Engineering Technology from Punjab Technical University, India in December 2000 and a Master of Engineering from Sathyabama Institute of Science and Technology, India in April 2004.

2.  He enlisted in the NJARNG in pay grade E-1 on 26 May 2009 for 8 years.  He was advanced to the rank/grade of private first class (PFC)/E-3 on 24 August 2009.

3.  On 26 August 2009, he was ordered to initial active duty for training and he entered on active duty on the same day.

4.  A DA Form 2173 shows he sustained a shin splint, closed stress fracture of the tibia on 5 September 2009 while attending BCT at Fort Jackson, SC.  The form shows he stated that he was injured while running during physical training.

5.  A DA Form 31, dated 11 September 2009, shows he requested 30 days of convalescent leave from 12 September to 11 October 2009.

6.  On 18 September 2009, the applicant's civilian doctor recommended the applicant be granted a 30-day extension of convalescent leave from 12 October to 10 November 2009.

7.  On 11 October 2009, his request for 30 days of convalescent leave from 
12 September to 11 October 2009 was disapproved.

8.  A DA Form 4856, dated 12 November 2009, shows he was counseled by his company commander concerning his transfer to the PTRP.  The DA Form 4856 stated he had missed a significant amount of training due to his injury and the subsequent profile.  The applicant's medical advisor had recommended the applicant be transferred to the PTRP and his commander concurred with that recommendation because he felt that there was a good chance after rehabilitation at PTRP the applicant would be able to resume his training and complete the requirements necessary to graduate BCT.

9.  On 16 November 2009, he concurred with the recommendation to transfer him to the PTRP.

10.  On 16 November 2009, he was given an IET physical profile with a PULHES profile of 114111 for a right tibia stress fracture.  The profile remarked, "See PTRP profile for restrictions."

11.  On 17 November 2009, he was issued a Memorandum of Reprimand for his AWOL.  The memorandum stated he had been authorized convalescent leave from 12 September to 11 October 2009 for stress fractures located throughout his right tibia.  That leave was recommended by his physical therapist.  It was expected that 30 days of convalescent leave would have been adequate for the healing of his stress fractures.  The memorandum also stated he was advised of the proper actions he must and must not embark upon while on leave.  Despite stating his leave place of location would be in NJ, he went abroad to India.  In addition, he surpassed his authorized length of convalescent leave by 30 days.  While in India, his doctor, a consultant orthopedic surgeon, contacted the command by email.  

12.  The Memorandum of Reprimand also stated that the doctor stated he had conducted an evaluation of the applicant and concluded the injury required an additional 30 days of convalescent leave.  The doctor was advised that neither 

he nor the applicant was authorized to extend the applicant's convalescent leave. Despite sending the doctor this information, the applicant took the extra 30 days convalescent leave extension.  He arrived back at the company on 10 November 2009.  His company commander discovered the applicant did not understand that only the company commander, not his doctor, was authorized to extend him leave.  The company commander did not believe the applicant was maliciously AWOL.  The applicant was reprimanded on his decision and the expectation to show responsibility, and to exercise more mature judgment.  It was stated the Memorandum of Reprimand would be filed locally at the company and disposed with the company commander's discretion within a year.

13.  In a Memorandum for Record, dated 7 December 2009, the applicant's NJARNG company commander highly recommended the applicant for consideration for Officer Candidate School.

14.  He provided a DA Form 4187 showing his advancement to SPC/E-4, with an effective date and date of rank of 26 August 2009, under the provisions of ARNG ECM (Enlistment Criteria) FY-07, Table 2-2, Line M (See Note 1).  Verbal Orders of the commander were confirmed on 26 August 2009.  The advancement was approved on 19 January 2010.

15.  He completed training and was awarded military occupational specialty 92W (Water Treatment Specialist).

16.  He was honorably released from active duty on 21 July 2010 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 4, by reason of completion of required active duty.  He reverted back to his NJARNG unit.  He was credited with completing 9 months and 28 days of net active service.

17.  Item 4a of his DD Form 214 shows the rank of PFC.  Item 4b show his pay grade as E-3.  Item 12i (Effective Date of Pay Grade) shows his date of rank as 24 August 2009.  Item 29 shows he was credited with time lost from 13 October 2009 to 10 November 2009.

18.  On 31 August 2010, he requested removal of his AWOL status through the IG Office.

19.  On 16 October 2010, a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) was initiated against the applicant for failing an Army Physical Fitness Test.  The FLAG was favorably closed and removed on
6 November 2010.

20.  ARNG ECM FY07, Table 2-2, Line M, Note 1, specifies an individual may be advanced to pay grade E-4 if they have completed a degree-producing program of at least 4 years in duration and received an official certificate.  Note 1 specifies the institution must be listed in the Accredited Institutions of Postsecondary Education published by the American Council on Education.

21.  Army Regulation 635-5 (Separation Documents) provides instructions for the preparation of the DD Form 214.  The regulation states Items 4a and 4b and 12i will list the rank, pay grade, and the effective date of the individual's promotion or reduction to the rank and pay grade in which the individual was serving on the effective date of separation.  Item 29 will show the inclusive dates of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-chargeable time after ETS [expiration of term or service].

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, while serving as a member of the NJARNG, was advanced to pay grade E-3 on 24 August 2009.  He entered on active duty for training on 26 August 2009.  In January 2010, the NJARNG issued a DA Form 4187 advancing him to SPC/E-4, effective 26 August 2009, contingent upon completion of a degree-producing program of at least 4 years and receipt of an official certificate.  The institution must have been listed in the Department of Education of Accredited Institution of Post-Secondary Education.  There is no evidence to show the institutions he received his bachelor and master degrees from are listed in or the U.S. Department of Education Database of Accredited Postsecondary Institutions and Program or certified as accredited.

2.  There is insufficient evidence provided by the applicant to show he was advanced to pay grade E-4 in the NJARNG prior to his release from active duty.  Therefore, his rank/grade at the time of his release from active duty was properly entered in items 4a and 4b of his DD Form 214.  In view of the foregoing, there is no basis for granting his request for correction to Items 4a and 4b of his DD Form 214 for the period ending 21 July 2010.

3.  The evidence of record shows he entered active duty for training on 26 August 2009.  During BCT he sustained a tibia stress fracture.  He was authorized 30 days convalescent leave from 12 September to 11 October 2009.  While on leave his civilian doctor requested a 30-day extension of convalescent leave from 12 October to 10 November 2009.  He returned to his unit on 10 November 2009.  He received a Memorandum of Reprimand for this period of unauthorized absence.
4.  The evidence of record further shows he was released from active duty on 21 July 2009 by reason of completion of required active service.  Item 29 of his DD Form 214 shows he was credited with time lost from 13 October - 
10 November 2009.  

5.  His contention that his AWOL should be removed from his DD Form 214 for the period ending 21 July 2010 has been noted.  However, he was on unauthorized leave from 13 October - 10 November 2009 and this is time lost.  Time lost is non-creditable for pay and for all other purposes.  He has provided no evidence to show he was granted an extension of authorized leave from the appropriate authority for the period 13 October - 10 November 2009.  He also has provided no evidence to show the entry in Item 29 of his DD Form 214 for the period ending 21 July 2010 was in error.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  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)                                         AR20100021699



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ABCMR Record of Proceedings (cont)                                         AR20100021699



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