IN THE CASE OF:
BOARD DATE: 23 June 2011
DOCKET NUMBER: AR20100027535
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 to be reinstated into the military in the rank/grade of sergeant (SGT)/E5. She also requests that she be granted back pay and service credit from the time of her separation.
2. She states she was not given the opportunity to appear before a formal medical board because she signed a medical release which she was coerced into signing. She opines that based on her military occupational specialty (MOS) 56M (Chaplain Assistant) and with two recommendations from colonels she would have been found fit for duty.
3. She provides the following:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-authored statement
* Congressional correspondence
* Enlistment contract
* Physical Evaluation Board (PEB) Proceedings, dated 15 March 2010
* E-mail, dated 11 May 2011
* Bonus recoupment worksheet with letter from the Defense Finance and Accounting Service, dated 19 October 2010
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows she enlisted into the United States Army Reserve on 2 February 2007. On 6 May 2008 she was promoted to specialist (SPC)/E4. On 15 June 2009, she was ordered to active duty.
2. On 15 March 2010, a PEB was convened which recommended a disability rating of 10 percent for degenerative disc disease. The PEB stated that the applicant had an onset of back pain prior to coming on active duty in June 2009. Her personal physician completed a letter in November 2008 that stated she had a history of chronic back pain due to degenerative disc disease which was permanent. She was given a P2 profile for low back pain in January 2009 with a weight restriction of 30 pounds. She was mobilized in June 2009 at which time she complained of back pain as she was deconditioned and did not have the appropriate time for gradual reconditioning.
3. She initialed the PEB in block 13 (Election of Soldier) indicating "I concur and waive a formal hearing of my case." She signed the form on 15 March 2010. Additionally, the counselor signed this form on the same date indicating that he had counseled the Soldier of the findings and recommendations of the PEB and explained to her the result of the findings and recommendations and her legal rights pertaining there to. "The Soldier has made the election shown above."
4. There are no orders or a promotion packet in the applicant's official military personnel file that shows she was promotable and subsequently promoted to SGT/E5.
5. On 8 June 2010, she was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, with disability severance pay. She was credited with 11 months and 24 days of "Net Active Service this Period" with 10 months and 9 days listed as "Total Prior Active Service." She received $16,752.00 disability severance pay.
6. On 11 May 2011, the representative for the Office of Soldier's PEB Counsel stated, in an e-mail, that the applicant did not have a formal board. He said the board did an informal reconsideration which was attached. However, the applicant did not provide a copy of the informal reconsideration.
7. Army Regulation 635-40 states that the findings and recommendations of the informal PEB are recorded on DA Form 199 (PEB Proceedings). Block 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations. These include the following:
* Concurrence with the findings and recommendations and waiver of a formal hearing
* Nonconcurrence with the findings and recommendations; submission of a rebuttal explaining the Soldier's reasons for nonconcurrence; and waiver of a formal hearing
* Demand for a formal hearing with or without personal appearance
* Choice of counsel if a hearing is demanded
* Soldiers indicate their elections by checkmark in block 13 and sign and date the original and the Medical Treatment Facility copies
8. The same regulation states that the PEB liaison officer will counsel the Soldier and make him or her fully aware of the election options available, the processing procedures, and the benefits to which he/she will be entitled if separated or retired for physical disability.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows on 15 March 2010, the applicant was found unfit for duty with a disability rating of 10 percent for degenerative disc disease. She signed the PEB Proceedings concurring with the board's findings and waving a formal hearing. There is no evidence and she has not provided any to show that she was coerced into signing PEB Proceedings.
2. Further, there is no evidence and she has not provided any to show that based on her MOS and the letters of recommendation, the PEB would have found her fit for duty and subsequently retained her in the military. She has also failed to provide evidence to prove that her discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant her retention on active duty.
3. In view of the evidence in this case, there is no basis for granting her 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) AR20100027535
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ABCMR Record of Proceedings (cont) AR20100027535
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