IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100026047 


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, that the following items on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed:  

* Item 4a (Grade, Rate or Rank) and 4b (Pay Grade) from private/E-2 (PV2) to an unspecified pay grade
* Item 12 (Record of Service) 
* Item 14 (Military Education (Course title, number of weeks, and month and year completed))
* Item 24 (Character of Service) from an uncharacterized discharge to an honorable discharge 
* Item 28 (Narrative Reason) medical disability 

2.  He states he:

* is rated as having a service-connected disability 
* has numerous errors on his DD Form 214 
* was discharged for failure to pass an Army Physical Fitness Test (APFT)
* completed military occupational specialty (MOS) training 

3.  He provides a letter from the Department of Veterans Affairs (VA), his DD Form 214, and two letters from the Army Review Boards Agency.  



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 enlisted in the U.S. Army Reserve (USAR) on 27 January 1992 in pay grade E-1.  

3.  Orders 18-18, dated 27 January 1992, show he was ordered to initial active duty for training (IADT) for approximately 9 weeks of basic training at Fort McClellan, AL, under the alternate (split) training program with a reporting date of 11 June 1992.  He was released from IADT on or about 13 August 1992.  

4.  His service record contains a DA Form 4187 (Personnel Action), dated 9 January 1993, which shows he was advanced to PV2 with an effective date and date of rank of 9 January 1993.  

5.  Orders 113-6, dated 10 June 1993, show he was ordered to IADT on 14 June 1993 for approximately 9 weeks of training to attend advanced individual training (AIT) under the alternate (split) training program.  

6.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

* Item 17 (Civilian Education and Military Schools) – completed 10 weeks of training in MOS 95B (Military Policeman) at the U.S. Army Chemical and Military Police Centers and Fort McClellan in 1993
* Item 18 (Appointments and Reductions) –  he was advanced to PV2 on 9 January 1993

7.  He was counseled on four separate occasions between 19 June 1993 and 5 August 1993 for APFT failures and lack of motivation while attending AIT.  

8.  On 5 August 1993, the company commander notified the applicant of pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, for entry level status performance and conduct.  He was advised of his rights.  He waived consultation with legal counsel and did not submit statements in his own behalf.

9.  The separation authority waived a rehabilitative transfer and directed he be discharged under the provisions of Army Regulation 635-200, chapter 11, for entry level status performance and conduct with issuance of an uncharacterized discharge.

10.  He was discharged on 13 August 1993 under the provisions of Army Regulation 635-200, chapter 11, for entry level performance and conduct with an uncharacterized discharge.  He completed 2 months of active military service.

11.  His DD Form 214 shows in items:  

* 4a and 4b – “PV2” and “E2”
* 12a (Date Entered Active Duty This Period) – 14 June 1993
* 12b (Separation Date This Period) – 13 August 1993
* 12c (Net Active Service This Period) – 2 months
* 12d (Total Prior Active Service) – 2 months and 2 days
* 12e (Total Prior Inactive Service) – 1 year, 2 months, and 15 days
* 12h (Effective Date of Pay Grade) – 9 January 1993
* 14 – None
* 24 – uncharacterized
* 26 - “JGA” (Entry Level Performance and Conduct)
* 28 – entry level status performance and conduct

12.  Orders 5-3-D, dated 26 January 1994, show he was discharged from the USAR Ready Reserve on 13 August 1993 under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) with an uncharacterized discharge.  

13.  His service record does not indicate he incurred any medically unfitting disability which required physical disability processing.  

14.  He provides a VA Rating Decision, dated 30 June 2010, which shows he was granted service-connection for chronic cervical spine strain associated with chronic left shoulder/trapezius muscle strain (10 percent (%)), chronic cervical spine strain (10 %), and neuropathy of the left upper extremity (0%).  

15.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that 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.

16.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  It states that Soldiers who are in an entry level status have completed no more than 180 days of continuous active duty.  Entry level status is defined as the first 180 days of continuous active duty.  

17.  A member of a Reserve component who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry-level status upon enlistment in a Reserve component.  Entry-level status of such a member of a Reserve component terminates (a) 180 days after beginning training if the Soldier is ordered to ADT for one continuous period of 180 days or more; or (b) 90 days after the beginning of the second period of ADT if the Soldier is ordered to ADT under a program that splits the training into two or more separate periods of active duty.  For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

19.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was advanced to PV2/E-2 on 9 January 1993 while he was on active duty.  His service record is void of evidence which indicates he was advanced above the grade of PV2 during the period covered by his 13 August 1993 DD Form 214.  Therefore, there is insufficient evidence on which to amend items 4a and 4b of his 13 August 1993 DD Form 214.  

2.  The evidence of record shows he served in the USAR from 27 January 1992 to 13 August 1993.  During this period he completed IADT (basic training) from 11 June 1992 to on or about 13 August 1992 (2 months and 2 days of active service) and from 14 June 1993 to 13 August 1993 (AIT) (2 months of active service).  

3.  He was issued a DD Form 214 for the period ending 13 August 1993 which properly shows he completed 2 months of active military service during the 
period covered by the report and 2 months and 2 days total prior active service.  Therefore, there is no basis for amending items 12c and d of his 13 August 1993 DD Form 214.  

4.  Although his DA Form 2-1 shows completed 10 weeks of training in MOS 95B at the U.S. Army Chemical and Military Police Centers and Fort McClellan in 1993, evidence shows he failed to pass the APFT which is required for successful completion of the course.  Therefore, it would not be appropriate to amend item 14 of his 13 August 1993 DD Form 214.  

5.  He was discharged from active duty on 13 August 1993 under the provisions of Army Regulation 635-200, chapter 11, with uncharacterized service.  He was in an entry level status at the time of separation from active duty on 13 August 1993 because he had served fewer than 180 days of active Federal service.  Therefore, his 13 August 1993 DD Form 214 properly reflects his characterization of service as uncharacterized.

6.  His service record is void of evidence which indicates he incurred any medically unfitting disability which required processing through medical channels.  

7.  He has not presented sufficient evidence to show his discharge was in error or unjust or that the narrative reason for his discharge should be changed from uncharacterized to a medical discharge.  

8.  The evidence of record shows he was granted service-connection by the VA for chronic cervical spine strain associated with chronic left shoulder/trapezius muscle strain (10 %), chronic cervical spine strain (10 %) and neuropathy of the left upper extremity (0%).  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.



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)                                         AR20100026047





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ABCMR Record of Proceedings (cont)                                         AR20100026047



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