IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100028552 


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, correction of his record to show:

* he was not released from active duty in the rank/pay grade of first lieutenant (1LT)/O-2 on 1 May 1991
* he continued to serve and received due course promotions through the officer ranks culminating at the rank/pay grade of lieutenant colonel (LTC)/O-5
* he completed 20 years of creditable active duty service for retirement and he was honorably retired as a LTC/O-5 [effective 31 May 2009]
* he was awarded or authorized all awards due to those who served during that period
* he is entitled to back pay and allowances

2.  He states, in effect, he believes his record is in error because:

* he was never given a chance due to his race, youth, and inexperience in the ways of the Army; especially the officer corps
* he was required to perform some duties which he had not performed for quite a while since being trained and other duties for which he had not been properly trained at all
* he was subjected to daily humiliation by the brigade executive officer and he received no moral support from his company commander
* 
he was not aware he was being considered for promotion to captain (CPT)/O-3 and he was surprised when he was informed he was being discharged due to the fact he had not been selected for promotion
* he thought he could remain on active duty until at least May 1992 because he had been ordered to active duty for a period of 3 years
* he was not given a pre-separation medical examination and contends he should have been required to receive one

3.  In support of this application he provides:

* an 8-page self-authored statement
* a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DD Form 215 (Correction to DD Form 214)
* a DA Form 2-1 (Personnel Qualification Record - Part II)
* an Officer Record Brief (ORB)

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.  His records show he was born on 29 December 1966 and his race is shown as "Black."

3.  His records show:

* on 5 June 1986, he was appointed as a second lieutenant (2LT)/O-1 in the Arizona Army National Guard (AZARNG) at the age of 19 years, 5 months, and 8 days
* on 19 May 1989, he was ordered to active duty as a 2LT/O-1 for 3 years and assigned to the 1st Adjutant General Replacement Company, Korea
* 
on 18 May 1989, he was discharged from the AZARNG and he was transferred to the U.S. Army Reserve (USAR) for the purpose of entering active duty
* on 19 May 1989, he was promoted to 1LT/O-2
* he was assigned to the 21st Adjutant General Replacement Detachment, Fort Hood, TX with a reporting date of 9 July 1990
* he was ultimately assigned to the 166th Ordnance Company

4.  His record contains a memorandum from the U.S. Total Army Personnel Command, Alexandria, VA, Subject:  Notification of Pending Release from Active Duty, dated 19 December 1990.  The memorandum stated that he was not selected for promotion or conditional voluntary indefinite status by the Fiscal Year 1990, Captain, Army Promotion Selection Board that convened on 11 September 1990 and adjourned on 3 October 1990.  Such decisions are made, in large part, based upon a review of Officer Evaluation Reports (OERs) and the comparison of an officer’s OER file against all other officers being considered for promotion.  The applicant’s OER file is not available for review.  As a result of his non-selection for retention, policy required him to be released from active duty no later than 1 April 1991.

5.  On 7 March 1991, he acknowledged his pending release from active duty and elected not to retain his commission as a Reserve Officer.  He requested to be discharged from the Army effective the date of his release from active duty.

6.  On 1 May 1991, he was honorably released from active duty by reason of his expiration of term of service and he was transferred to the USAR Control Group (Reinforcement).  He was credited with completing 1 year, 11 months, and
13 days net active duty service.  The DD Form 214 he was issued, as corrected by a DD Form 215, dated 23 October 2009, contains the following entries: 

* Item 11 (Primary Specialty) shows 91B00, 3R, Tank/Automotive Materiel Management, 2 years and 91C00 Missile Material Management, 2 years
* Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, and the Korea Defense Service Medal
* Item 14 (Military Education) shows the Ordnance Officer Basic Course [OBC], 20 weeks 1989

7.  His record is void of any evidence and he has not provided any evidence showing he is entitled to any additional awards or decorations.

8.  He submitted a copy of a memorandum from the Department of Veterans Affairs (VA), dated 27 July 2007, which shows he was awarded a service-connected disability rating of 0 percent for a Spontaneous Collapsed Lung.

9.  He provided an 8-page self-authored statement wherein he states, in effect:

* his father abandoned him, and his mother encouraged him to get an education, join the Army, and become an officer
* he excelled as a member of the Junior Reserve Officers" Training Corps (ROTC) during high school
* he continued to excel as a member of the Senior ROTC while attending the New Mexico Military Institute
* he joined the AZARNG and he was commissioned as a 2LT/O-1
* he had a strong desire to become a helicopter pilot so he earned a bachelor of science degree in aviation business administration
* the Army selected him for the Ordnance Corps (his 8th branch preference)
* his long-term goal was to become the Secretary of the Army
* he excelled during the Ordnance OBC for career management field 91C
* there was an excess of lieutenants at his first duty station in Korea so he was required to perform duties other than those he had trained for
* while serving in Korea the Army added a "B" designation to his specialty which encompassed fleet vehicles and equipment maintenance and required additional training that he had not received
* nothing he did mattered to anyone; it was either ignored or disapproved
* he wanted to become an effective member of the team, but all his efforts were blocked and he received no guidance on how to improve
* he believes he was never given a chance due to his race, youth, and inexperience in the ways of the Army; especially the officer corps
* he did as he was told out of fear, humiliation, and degradation caused by adult bullying on the part of his superiors
* he was reassigned to Fort Hood, TX with duty as a 91B
* he tried to recall his previous training and to learn the duties of a 91B at an accelerated pace
* he was subjected to daily humiliation by the brigade executive officer and received no moral support from his company commander
* he believes the stress took a physical toll on him and contends it caused his left lung to collapse
* he also speculates the collapse of his lung could have been the result of the requirement for him to break the seal of his protective mask and inhale tear gas during multiple Nuclear, Biological, Chemical (NBC) training sessions
* he underwent thoracostomy surgery and following recuperation he was returned to duty in the same position, where the harassment and humiliation continued
* he was informed he had been passed over for promotion to CPT/O-3 and he would be discharged in 30 days
* he was not even aware he was being considered for promotion and he was told he was not informed sooner because the Department of the Army thought he was deployed in the Persian Gulf and misrouted his paperwork
* he thought he could remain on active duty until at least May 1992 because he had been ordered to active duty for a period of 3 years
* he was not given a pre-separation medical examination and contends he should have been required to receive one
* he requested a copy of his record and is dismayed at the lack of content; particularly the absence of officer evaluation reports
* the Army failed his family, especially those who had served honorably in the military
* since leaving the military he:

* obtained a Master's degree
* owned his own business
* wrote a book and provides speeches on improving one's personal credit
* serves as Chairman of the Phoenix Central Neighborhood Association
* serves as a state legislative district secretary for his political party

10.  His medical records were not available for review and the applicant provided no medical records that show he had an unresolved medical condition at the time of his separation or that he was denied an opportunity to undergo a
pre-separation medical examination.

11.  Army Regulation 635-100 (Personnel Separations - Officer Personnel), in effect at the time, provided the authority for the separation of commissioned and warrant officers from the Active Army.  Paragraph 3-48c(3) of this regulation specifically provided for the expiration of active duty commitment due to disapproval of voluntary indefinite status. 

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that the military treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a Medical 

Evaluation Board (MEB).  Those members who do not meet medical retention standards will be referred to a Physical Disability Board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

13.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in the Army not separating the individual for physical unfitness.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies an individual from further military service.

14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was 19 years old at the time of his entry into the military and he was over 24 years old at the time of discharge.  There is no evidence that indicates that he was any less mature than other officers who successfully completed military service.

3.  The evidence of record shows the applicant was ordered to active duty in a Reserve commissioned officer status on 19 May 1989 and he was honorably released from active duty on 1 May 1991 under the provisions of Army Regulation 635-100, paragraph 3-48a(3), based on the expiration of his active duty commitment due to disapproval of voluntary indefinite status

4.  When compared to his peers, his performance was obviously determined to be insufficient for promotion and retention on active duty; however, he could have retained his Reserve commission and served in the USAR.  Evidence of record also shows he elected not to retain his commission as a Reserve Officer and requested to be discharged on the effective date of his release from active duty.

5.  Had he remained in the USAR, he possibly could have achieved the rank of LTC and qualified for non-regular retirement at age 60.  In any event, his reason for separation was valid and does not entitle him to be reinstated on active duty, promoted to LTC, retired at 20 years of active duty service with back pay and allowances, or the receipt of any additional awards or decorations authorized during the years following his discharge.

6.  An officer is responsible for knowing when he/she will be considered for promotion and what the requirements are for promotion eligibility according to the regulation.  An officer is also responsible for ensuring that his/her official personnel management files are correct and up to date.  The applicant was properly and justly separated as a result of non-selection for promotion to CPT/O-3 and conditional voluntary indefinite status.

7.  There is no evidence and the applicant has not provided sufficient evidence showing he was mistreated in any way based upon his race.

8.  His record is void of any evidence and he has not provided any evidence showing he is entitled to any additional awards of decorations.

9.  The applicant’s medical records were not available for review and he did not provide any medical records showing he had an unresolved medical condition at the time of his separation or that he was denied an opportunity to undergo a pre-separation medical examination. 

10.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over their lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. 

11.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  Thus, in the absence of evidence to the contrary, the presumption is the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

12.  In view of the foregoing, there is insufficient evidence to support the applicant's contention that he was improperly released from active duty and that he should be reinstated on active duty.

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)                                         AR20100028552



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ABCMR Record of Proceedings (cont)                                         AR20100028552



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