IN THE CASE OF:	  

		BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110012447 


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 correction of item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged from active duty.

2.  The applicant states:

* he was medically evacuated from Baghdad, Iraq, on 10 December 2004, as a result of injuries suffered in country
* he was taken to Langstuhl, Germany, and then to Madigan Army Medical Center, Fort Lewis, Washington
* he was operated on due to his shoulder  injury on 3 January 2005
* on 11 February 2005, it was determined that he was no longer fit for duty due to his injuries
* the Physical Evaluation Board (PEB) findings show he was to be discharged with severance pay, due to a 10 percent disability rating, and that his disability resulted from a combat-related injury

3.  The applicant provides:

* U.S. Army Physical Disability Agency (USAPDA) memorandum, dated
13 March 2006
* USAPDA Orders D073-01, dated 13 March 2006
* Medical Evaluation Board (MEB) Proceedings, dated 18 November 2005
* DD Form 214, dated 11 February 2005
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Madigan Army Medical Center letter, undated
* Army medical records
* DA Form 3349 (Physical Profile), dated 23 November 2005

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.  After having had prior service in the U.S. Marine Corps, the applicant enlisted in the Washington Army National Guard (WAARNG) for 6 years, 5 months, and 17 days on 17 May 2004 in military occupational specialty 11B (infantryman).  

3.  He was ordered to active duty in support of Operation Iraqi Freedom, effective 16 August 2004.

4.  The applicant's medical records show that he dislocated his right shoulder in August 2004 when he fell during initial military training at Fort Lewis, Washington, while preparing for deployment.

5.  On 10 December 2004, the applicant reinjured his right shoulder when he fell into a hole while he was on night duty in Baghdad, Iraq.  He was diagnosed with a grade 3 right (dominant) acromioclavicular separation.  He was medically evacuated through Germany to Madigan Army Medical Center, Fort Lewis, Washington, and he was operated on as a result of his injury on 5 January 2005.

6.  Headquarters, I Corps and Fort Lewis Orders 033-0044 were published on 2 February 2005, releasing the applicant from active duty (REFRAD), effective 11 February 2005, and assigning him to Company A, 1st Battalion, 161st Infantry, Kent, Washington, to complete his military service obligation.  


7.  The DD Form 214 he received shows he was honorably released from active duty on 11 February 2005, under the provisions of Army Regulation 635-200, chapter 4 and item 28 on the DD Form 214 shows his narrative reason for separation as "Completion of Required Active Service."

8.  An MEB convened on 18 November 2005 to determine if the applicant should be referred to a PEB.  The MEB diagnosed him with failed reconstruction of "coracoclavicular joint" status, post grade 3 acromioclavicular joint separation.  He was also diagnosed with intermittent numbness and tingling in the right upper extremity, which met retention standards.  The MEB recommended that the applicant be referred to a PEB for evaluation.

9.  A PEB convened on 3 February 2006, to determine if the applicant was medically fit to perform the duties required of a Soldier of his rank and primary specialty.  The PEB diagnosed him with chronic right shoulder pain due to failed reconstruction of the coracoclavicular joint following acromioclavicular separation in August 2004.  His status post Weaver-Dunn procedure with wire fixation of the distal clavicle gave way causing "1 cm" protrusion of the distal end.  There was a loss of shoulder motion due to pain alone (flexion 121 degrees, abduction 133 degrees).  His condition prevented full function as an infantryman due to pain and associated profile restrictions.  The PEB stated the applicant was REFRAD after surgery, but did not recover and that he was considered unfit when he left active duty.  The PEB found the applicant physically unfit and recommended separation with severance pay and a 10 percent combined service-connected disability rating.  The applicant concurred with the findings and waived a formal hearing.

10.  USAPDA Orders D073-01, dated 13 March 2006, discharged the applicant from the ARNG, effective 31 March 2006, with disability severance pay.

11.  On 31 March 2006, the applicant was honorably discharged from the WAARNG.  Item 23 (Authority and Reason) on the NGB Form 22 he received shows he was discharged under the provisions of National Guard Regulation 600-200, paragraph 8-26, due to being medically unfit for retention, per Army Regulation 40-501, chapter 3.  

12.  Army Regulation 635-200, chapter 4 provides for the separation for expiration of service obligation.  Paragraph 4-2 provides for discharge or REFRAD upon termination of enlistment and other periods of active duty or active duty for training.  It states that Soldiers of the Army National Guard of the United States and the U.S. Army Reserve ordered to active duty for a period in excess of 90 days will, upon REFRAD, revert to control of the appropriate Reserve Component.

13.  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 establishes standardized policy for preparing and distributing the DD Form 214.  The instructions for preparing the DD Form 214 state item 28 will be the actual reason for separation from active duty based on the regulatory authority for separation.  There are no provisions for modifying the authority or reason for separation entered for discharge actions that take place subsequent to a member's actual separation from active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  The applicant had not been processed for separation through medical channels at the time of his REFRAD.  He was medically evacuated from Iraq to Fort Lewis, Washington.  He was operated on at Madigan Army Medical Center on 5 January 2005 and he was no longer fit for retention on active duty.  Therefore, he was REFRAD at the completion of his required active service and reverted to control of the appropriate Reserve Component.

3.  USAPDA Orders D073-01 discharged him from the ARNG with severance pay due to unfitness rated 10 percent disabling.

4.  He was processed for separation through medical channels after his REFRAD and received an NGB Form 22 showing he was medically unfit for retention at the time of discharge from the ARNG.  

5.  The DD Form 214 he received properly shows his status at the time of his REFRAD.  In view of the foregoing, his request should be denied.

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)                                         AR20110012447



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ABCMR Record of Proceedings (cont)                                         AR20110012447



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