IN THE CASE OF:	  

		BOARD DATE:	    15 September 2011

		DOCKET NUMBER:  AR20110004323 


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  reconsideration of her previous application to show she was medically retired on 17 April 1999;

2.  As new issues, the applicant also requests correction of her name from B---i F-----n C----r to B---i R-----n C----r and to have her period of active duty from      11 through 25 September 2004 be shown to have ended in a medical discharge.

3.  The applicant states:

	a.  item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 April 1999 should read "Permanent Medical Retirement" due to information in the line of duty injury during a war simulation exercises;

	b.  her period of active duty from 11 through 25 September 2004 is not on her "military record" and should be shown to have ended in a medical discharge; and

	c.  she is and has been a permanently disabled veteran since her injury on
22 July 1998.

4.  The applicant provides:

* her DD Form 214
* her Mississippi Driver License issued on 1 April 2008
* Orders 239-8, issued by the Military Entrance Processing Station (MEPS), Jackson, MS, dated 23 December 1997
* a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 22 September 1998
* a memorandum from Headquarters, 1st Basic Combat Training (BCT) Brigade, Fort Jackson, SC, subject:  Line of Duty (Applicant's rank, name, social security number, and unit), darted 22 October 1998
* Orders 93-5, issued by MEPS, Jackson, MS, dated 26 May 1998
* Orders M-07-402958, issued by the U.S. Army Human Resources Command, St. Louis (HRC-STL), dated 30 July 2004
* Orders 266-172, issued by Headquarters, U.S. Army Training Center, Fort Jackson, dated 22 September 2004
* Orders D-12-539290, issued by HRC-STL, dated 27 December 2005
* two letters from the Department of Veterans Affairs (DVA), Jackson, MS, both dated 25 January 2011
* his Defense Finance and Accounting Service (DFAS) Form 702 (DFAS Military Leave and Earnings Statement (LES)) for the period covering "Check Date 1 March 2011"

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100000733 on 26 January 2010.

2.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15a governs requests for reconsideration.  This provision of regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR if the request is received within 1 year of the original decision and it has not previously been reconsidered. Such requests must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration.

3.  The staff of the Board reviewed the applicant's request for reconsideration of her request to show she was permanently medically retired on 26 May 1998, the original ABCMR decision, and the evidence submitted in support of her previous 
application.  From that review, it was determined that, although the request was received within 1 year of the ABCMR's original decision, the applicant did not provide any new evidence and/or argument related to this portion of her application.  Therefore, this portion of her application will not be discussed further in these Proceedings.

4.  The applicant requested that her records be corrected to show her period of active service from 11 through 25 September 2004 ended in a medical discharge.  Her record contains a DD Form 220 (Active Duty Report), dated      22 September 2004, that was issued showing her active duty service from        11 through 25 September 2004.  Item 21 (Remarks) indicates the applicant was not medically qualified for deployment.  In accordance with Army Regulation 635-5 (Separation Documents) a DD Form 220 will be prepared for a U.S. Army Reserve (USAR) Soldier who reports to a mobilization station and is found unqualified for active duty.  The DD Form 220 accurately shows her active duty service during this period and that her service ended because she was not medically qualified and is contained in her official military record.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.  A copy of the DD Form 220 will be provided to the applicant with these Proceedings.

5.  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 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.

6.  The applicant enlisted in the USAR on 23 December 1997 under the name   B---i F-----n C----r.  She entered initial active duty for training (IADT) on 26 May 1998.

7.  On 22 July 1998, during BCT, the applicant sustained a left distal tibia fracture and fibula fracture while negotiating the obstacle course.  The injury required surgical intervention.

8.  On 8 February 1999, she was reassigned to another BCT unit.  She successfully completed both basic combat and advanced individual training and she was awarded military occupational specialty (MOS) 71L (Administrative Specialist).

9.  On 17 April 1999, she was released from ADT at the completion of required training.  She was returned to her USAR unit at Jackson, MS. 

10.  On 18 April 2000, the applicant was released from her USAR unit and she was reassigned to the USAR Control Group (Annual Training) by reason of unsatisfactory participation.

11.  Orders M-07-402958, dated 30 July 2004, ordered the applicant (under the name of B---i F-----n C----r) to active duty in support of Operation Iraqi Freedom with a reporting date no later than 11 September 2004.

12.  She reported to the mobilization site at Fort Jackson on 11 September 2004. However, she was determined to be not medically qualified for deployment and accordingly released from active duty on 25 September 2004.

13.  Orders 226-172, dated 22 September 2004, show the applicant (under the name B---i F. C----r) was released from active duty, effective 25 September 2004, by reason of physical disability.  She was transferred to the USAR Control Group (Reinforcement) to complete her remaining service obligation.

14.  The first record of the applicant's use of the name B---I R-----n W------s is on a Standard Form 312 (Classified Information Nondisclosure Agreement), dated 23 April 2005.  The typed portion showing her name has a line through the middle and last name and a handwritten correction added.

15.  Orders D-12-539290, dated 27 December 2005, directed that the applicant (under the name B---i F-----n C----r) be honorably discharged from the USAR effective 27 December 2005. 

16.  The two DVA letters indicate the applicant (under the name B---i W------s) is entitled to service-connected disability(ies) rated at 100 percent (%) and shows her monthly payment amount.  The 100% figure is lined through and the entry "70%" is penned in.  Neither letter lists what condition(s) she is rated for or when she initially received that rating.

17.  The applicant's driver's license, issued on 1 April 2008, shows her name as B---i R-----n W------s.

18.  The DFAS LES shows the name of B--b R. W------s.

19.  The applicant's service medical and dental records are believed to be on permanent loan to the DVA and are not available for review.

20.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release 

from active duty service, or control of the Active Army.  It provides that a
DD Form 214 is:

	a.  prepared for an active duty Soldier on retirement, discharge, release from active duty service, or control of the Active Army;

	b.  prepared for a Reserve Component Soldier completing IADT that results in the award of an MOS, or period of active duty period greater than 90 days; and

	c.  not prepared for a Soldier found disqualified on reporting for active duty and who does not enter actively upon duties per orders.

21.  Title 10, U.S. Code, section 1201, provides for the retirement of a member who has at least than 20 years service or has a disability rated at least 30%.  For a disability retirement, the member must have been found unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability incurred while entitled to basic pay.  Any other member of the armed forces entitled to basic pay who has been called or ordered to active duty (other than for training under section 10148(a)) for a period of more than 30 days the disability must have been the proximate result of performing active duty.

22.  Title 38, U.S. Code, sections 310 and 331, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth the requirements for retirement or separation for a physical disability.  It provides that:

	a.  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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service;

	b.  when a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with their rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit; and 

	c.  for members called to active duty, entry physical standards will be used in separating individuals with pre-existing medical conditions.  

24.  Army Regulation 15-185, paragraph 2-9, states 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.  From the available record, the applicant appears to have changed her name at some point after her release from active duty in 2004 but before the Standard Form 312 was completed on 23 April 2005.  When or why the name change occurred is not in evidence.

2.  Her DFAS LES shows her name as B---i R-----n W------s.  However, it is not appropriate to correct any document that predates the actual date of her name change.

3.  Further, the name change requested does not match any name utilized by the applicant during any period of her service or the name listed on her current State drivers license.  Therefore, it would not be appropriate to correct the record to the name requested on her application.

4.  The applicant is not shown to have been medically unfit at the time of her completion of her IADT on 26 May 1998.  She has provided no evidence that she incurred or aggravated a medical condition as a result of active duty service in the USAR.  

5.  The fact that she was found to not be physically qualified for deployment does not meet the criteria for award of disability retirement.

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)                                         AR20110004323



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ABCMR Record of Proceedings (cont)                                         AR20110004323



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