BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110011837 


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 change of the narrative reason for her separation to medical.  In addition, she requests reinstatement of her enlistment bonus, Post- 9/11 GI Bill, and all incentives to which she is entitled.  She further requests issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) reflecting her time in the Army.

2.  The applicant states, in effect, she tore her abdomen while assigned to airborne school and she was eventually discharged.  On 14 January 2009, she received a notification of medical unfitness for retention.  On 21 May 2011, she travelled to her unit in North Carolina because she had not received her
DD Form 214 or final discharge papers.  Once at her unit, a Soldier provided her with discharge orders effective 19 March 2010.  The applicant further states she has received zero assistance from TRICARE, and she has medical bills from March 2009 through the present which have destroyed her credit.

3.  The applicant provides numerous documents, i.e., certificates, scorecards, and memoranda pertaining to her recruitment and training in the U.S. Army in addition to a large amount of medical documentation from civilian and military physicians.  She also provides a self-authored statement, various orders, her
DD Form 214 for the period ending 16 October 2008, and a 10-page letter to a Member of Congress.


CONSIDERATION OF EVIDENCE:

1.  With 7 months and 8 days of prior active and inactive service, the applicant enlisted in the U.S. Army Reserve (USAR) on 14 January 2008 for a period of
8 years in the rank/grade of private (PV2)/E-2.  She entered active duty for training (ADT) on 30 January 2008.

2.  In connection with the applicant's enlistment, she and her recruiter signed a Reserves Annex (Certificate and Acknowledgement USAR Service Requirements and Methods of Fulfillment) to her DD Form 4 (Enlistment/
Reenlistment Document – Armed forces of the United States).  This form shows in:

	a.  Section IV (Service Obligation), paragraph 2, the entry “I am enlisting under the program or programs as indicated below:  STP (Standard Training Program) School course, I have been assured of attending the School course for:  Training MOS (Military Occupational Specialty):  92R (Parachute Rigger).”

	b.  Section IV, paragraph 3, the entry "The following programs and/or incentives are my authorized entitlements:  Nonprior Service (NPS) Montgomery GI Bill (MGIB) Kicker $350.00 and NPS Enlistment Bonus (NPSEB) $2000.00.”

	c.  Section IV, paragraph 3b, the entry “I understand I must successfully complete the basic Airborne School to remain qualified for the training I have selected.”

3.  In connection with the applicant's enlistment, she and her recruiter signed a Selected Reserve Incentive Program (SRIP) – Enlisted Bonus Addendum.  This form shows in:

	a.  Section III (Acknowledgement), paragraph 6, the entry “I am enlisting in the USAR with concurrent assignment to a unit of the Selected Reserve for a minimum of 6 years.  The incentive entitlement is based on the unit vacancy authorized by Headquarters Department of the Army (HQDA) for a bonus entitlement.”  Paragraph 7a states, “Assignment in MOS 92R which is authorized by HQDA for bonus entitlement.”

	b.  Section VII (Termination), the entry “My entitlement to the enlistment bonus will be terminated should any of the following conditions occur before the fulfillment of my enlistment agreement and obligation.  Should I…4.  Be separated from my status as an enlisted Soldier assigned to a unit of the 


Selected Reserve, for any reason, except when separated for an authorized period of nonavailability or entry on active duty.  This could result in recoupment action unless the separation is due to – c.  Death, injury, illness, or other impairment not the result of my own misconduct.”

4.  In connection with the applicant's enlistment, she and her recruiter signed a Statement of Understanding - The MGIB Selected Reserve.  This form shows in:

	a.  Section VII (Termination of Entitlement), the entry “I have read the following and understand that my entitlement to educational assistance will be terminated under any of the following conditions:  2.  If I am discharged or separated from the Selected Reserve except in d(2)  As a result of unsatisfactory participation, or unsatisfactory performance, or under other adverse conditions including a transfer with a tentative characterization of under other than honorable conditions; or d(3)  If I fail to meet qualifications for membership in the Selected Reserve under law or regulations, to include medical fitness standards.”

	b.  Section IX (Statement of Understanding), the entry “I have read and understand each of the sections above, have had my questions answered satisfactorily, and understand the Selected Reserve MGIB eligibility requirements, benefits, entitlement procedures, and caution.”

5.  The applicant provides a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 May 2008.  The attending physician or patient administrator noted in item 15 (Details of Accident or History of Disease), “strained lower abdominal muscle while doing PLF’s (parachute landing falls) for jump school on 1 May 2008.”

6.  Her records contain a Basic Airborne Course Drop Counseling form, dated
11 June 2008, that indicates the applicant quit the basic airborne course.  On this form she states she voluntarily terminated training for the following reason:  “I am not physically equipped to continue airborne training.”

7.  The applicant’s records contain a DA Form 4856 (Developmental Counseling Form), dated 12 June 2008, that states “You currently have an MOS of 92R.  Due to your decision to quit basic airborne training, you must now have a new MOS assigned to you which will be at the needs of the USAR.  As a result of this new assignment of MOS, you may no longer be eligible for certain incentives such as bonuses.”   The applicant agreed with the counseling and authenticated it with her signature.

8.  Her record contains a memorandum from Headquarters, U.S. Army Reserve Command that states the applicant was approved for involuntary renegotiation from MOS 92R1P to MOS 63B1O (Light Wheel Vehicle Mechanic) in accordance with Army Regulation 135-200 (Active Duty for Missions, Projects, and Training for Reserve Component Soldiers), to best meet the needs of the Army, provided the applicant was physically, morally, and otherwise qualified.  The reason for the action was due to the Soldier being dropped from the Airborne course.  The memorandum further states in accordance with Army Regulation 601-210 (Active and Reserve Components Enlistment Program), chapter 10, the applicant was not entitled to retain her enlistment incentives.

9.  The applicant provides a DA Form 3349 (Physical Profile) that shows on
27 June 2008, she received a temporary profile due to abdominal pain of “unknown origin.”

10.  The applicant provides documents that show on 25 July 2008, she received laparoscopic surgery to remove an ovarian cyst.  The unit commander granted the applicant 14 days of convalescent leave for rehabilitation from the surgery.

11.   The applicant was honorably released from ADT on 16 October 2008 in the rank/grade of private (PV2)/E-2 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4 by reason of completion of required active service.  She completed 8 months and 17 days of net active service during this period of service.

12.  The applicant provides a DA Form 2173 that shows on 9 January 2009, while assigned to the 991st Transportation Company, she was transferred from Fort Jackson, SC to the Richland Emergency Room for right-side sudden adnexal pain.

13.  She provides a DA Form 2173 that shows on 4 October 2009, she was taking the bi-annual Army Physical Fitness Test with her unit when she began to have abdominal pain and muscle spasms.  The applicant was completely examined and all test results were unremarkable.

14.  Her records contain a memorandum to her from the U.S. Army Central Personnel Security Clearance Facility, Fort Meade, MD, subject:  Intent to Revoke Security Clearance, dated 19 October 2009.  The memorandum states on 25 March 2009, her command submitted an incident report that revealed she had tested positive for the drug THC (Tetrahydrocannabinol) on 17 March 2009.


15.  The applicant provides DA Form 3349, dated 20 November 2009, that shows she received a permanent profile for a head injury.

16.  The applicant provides a memorandum from Headquarters, 81st Regional Support Command, Fort Jackson, dated 10 December 2009, that notified the applicant that as a result of her medical evaluation, she was medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 3-30 (head injury).  The memorandum further instructed the applicant she had 30 days in which to return her response.  Failure to respond to the correspondence within 30 days would constitute a waiver of all rights and she may be discharged with an honorable characterization of service.

17.  The complete facts and circumstance of the applicant’s discharge are not available for review; however, the applicant provides and her records contain Orders 10-078-00002, issued by Headquarters, 143d Combat Support Command, Sustainment Expeditionary, Orlando, FL, dated 19 March 2010, that discharged the applicant from the USAR effective 19 March 2010 with an under honorable conditions (general) discharge under the provisions of Army Regulation 135-178.

18.  There is no indication she performed any periods of active duty between the date she was released from ADT (16 October 2008) to the present which would have warranted the issuance of a DD Form 214.

19.  She provides a copy of a letter written on her and her family’s behalf by an attorney to a Member of Congress requesting support in securing medical treatment, injury compensation, and military benefits.  The attorney opines the applicant has been left in a “limbo” situation somehow not employed or paid, but also not fully discharged or able to receive a Department of Veterans Affairs (VA) rating, medical, or disability benefits.  The attorney further states the applicant:

	a.  Suffered hypothermia and frostbite while in basic training at Fort Jackson.  She suffered a torn right abdominal muscle while in Airborne training at Fort Benning, GA.

	b.  Received numerous steroid injections to treat her abdominal muscle that resulted in a hormone imbalance and rupturing ovarian cysts.  Thereafter, she began to suffer constant muscle spasms which persist to this day.

	c.  Was placed on an inhaler for 6 months due to surgical complications resulting from medical personnel failing to release all the CO2 gas from her chest upon completion of laparoscopic surgery to remove her ovarian cysts.
	d.  Was 100 percent (%) healthy prior to entering the service; now however, her pain medications do not work or agree with her nervous system, her overall health and fitness have been reduced by 50%, and she was not given a medical discharge even though she suffered a service-connected injury.

	e.  Was expected to report to drill with her unit over an hour away at her own expense despite being unemployed for an entire year.

	f.  Had every intention of making the Army a career since her parents were both in the military.  Throughout the applicant’s period of service she received numerous accolades.

	g.  Received discharge papers after a year of not being able to attend drills due to abdominal spasms and unemployment.  She never received any dental work or physical check-up while she was in training nor was she able to connect with anyone to set up an appointment.

	h.  Was never promoted to the rank of specialist (SPC)/E-4 despite receiving back pay for the rank.  She also was denied an advance pay prior to her 2-week annual training which was provided to other trainees in her unit.

	i.  Believes her discharge and denial of her enlistment bonus and medical treatment may have been in retaliation for making a complaint of sexual harassment against a member of her unit.

	j.  Was never told she would lose her MGIB kicker and enlistment bonus due to suffering an on-the-job injury and not being allowed to MOS qualify because of the injury.

20.  The attorney concluded the U.S. Army breached its enlistment contract on an applicant who was injured while on ADT and discharged without compensation, medical treatment, or rehabilitation benefits.  He further states the applicant should be either allowed back on active duty, be medically retired, or be honorably discharged with all benefits and allowed to be rated and receive VA benefits which her active duty injury entitle her to.

21.  Army Regulation 135-7 (Incentive Programs) prescribes policies and procedures for the administration of the Army National Guard (ARNG) and the USAR incentive programs.  Chapter 2 contains guidance on the SRIP, USAR NPSEB.  Paragraph 2-6 contains guidance on termination conditions and states enlistment bonus entitlement will stop if a Soldier moves to a nonbonused unit or MOS or is reclassified in an MOS other than that for which contracted.
22.  Army Regulation 135-178 (ARNG and Army Reserve Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the USAR and ARNG.  

23.  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.  Under the laws governing the Army Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty (LOD) criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty for training.  Except as provided elsewhere, an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

24.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge, and is not intended to have any legal effect on termination of a Soldier's service.  A DD Form 214 will be prepared for each Soldier as indicated:

	a.  Active Army Soldiers on termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration of term of service), physical disability separation, or punitive discharge under the Uniform Code of Military Justice;

	b.  Reserve Component (RC) Soldiers completing 90 days or more of continuous active duty for training (ADT), Full-Time National Guard Duty, active duty for special work, temporary tours of active duty, or Active Guard Reserve service.  Also, RC Soldiers separated for cause or physical disability, regardless of the length of time served on active duty;

	c.  ARNG and USAR Soldiers mobilized under Title 10, U.S. Code, sections 12301(a), 12302, or 12304, and ARNG Soldiers called into Federal service under Title 10, U.S. Code, chapter 15 or section 12406, regardless of length of mobilization, when transitioned from active duty.  A Soldier who reports to a mobilization station and is found unqualified for active duty will be excluded from this provision; and
	d.  RC Soldiers completing initial ADT that results in the award of a military occupational specialty, even when the active duty period was less than 90 days.  This includes completion of advanced individual training under the ARNG of the United States Alternate Training Program or the USAR Split Training Program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be changed to a medical separation in addition to reinstatement of her enlistment bonus, Post- 9/11 GI Bill benefits, and all incentives to which she is entitled.  She further requests a
DD Form 214 reflecting her time in the Army.

2.  The evidence of record shows the applicant suffered certain medical conditions which rendered her medically disqualified for continued service in the USAR.  On 11 December 2009, she was provided with her options and given
30 days in which to return her response.  There is no evidence in the applicant’s records nor did she provide evidence that indicates she ever responded.  

3.  Regardless, on 17 March 2009, prior to receiving her medical disqualification for continued service in the USAR, she tested positive for illegal drugs.  The complete facts and circumstances that led to her discharge were not provided by the applicant and are not available for review.  However, her record contains an order that discharges her from the USAR effective 19 March 2010 with a general discharge.  Because her discharge packet is not available, it cannot be determined if she was separated for a reason that would have precluded her consideration by the physical disability evaluation system.

4.  Therefore, the applicant is not entitled to change of her discharge or reinstatement of her enlistment bonus, Post-911 GI Bill benefits, monthly pay, or health care benefits under TRICARE.  In accordance with the provisions of her enlistment contract, she forfeited all rights of entitlement to her enlistment bonus and other incentives when she quit airborne school and forfeited her education and health benefits when she received a general discharge.

5.  Notwithstanding the allegations and opinions provided by an attorney to a Member of Congress, there is no evidence in the available records and the applicant did not provide sufficient evidence to support said allegations.  

6.  The available records show the applicant served on active duty from 30 January 2008 to 16 October 2008 and she was issued a DD Form 214 that 


captured this period of active duty.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.

7.  Subsequent to her release from ADT, the applicant did not complete any periods of active duty.  Even if she were on active duty for any period, this period could not be added to her previously-issued DD Form 214 because the periods were not continuous.

8.  The issuance of a separate DD Form 214 would have required performance of at least 90 days of active duty.  There is no evidence she performed any other period of active duty of at least 90 consecutive days which would have qualified her for the issuance of a DD Form 214.

9.  The Army Board for Correction of Military Records (ABCMR) does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

10.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110011837



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ABCMR Record of Proceedings (cont)                                         AR20110011837



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