IN THE CASE OF:	  

		BOARD DATE:  12 April 2012

		DOCKET NUMBER:  AR20110018727 


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 her record to change the separation program designator (SPD) code of LBK (i.e., expiration of term of service (ETS)) she received when she separated from active duty in 1991 to one that would show she was separated by reason of medical retirement/discharge.

2.  The applicant states she joined the U.S. Army Reserve (USAR) after completing her active duty service in the Regular Army (RA) in 1986.  In 1989, she reenlisted in the USAR for 3 years.  Her expiration of term of service was in 1992.  Her unit was called to active duty is support of Operation Desert Shield in 1992.  She could not deploy with the unit due to a mental illness and she was released from the USAR for that reason.  Her records were reviewed in St. Louis and it was noted that she was not fit for retention in the USAR, not fit for mobilization, and not fit for deployment because of a history of paranoid schizophrenia.

3.  The applicant provides the following documents in support of her application:

* USAR Personnel Center (ARPERCEN) Physical Review Board Standard Form 507 (Clinical Record)
* Physical Review Board clinical records
* Standard Form 88 (Report of Medical Examination) reverse and continuation sheet



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 serving in the RA for 2 years and 10 months between 1983 and 1986, the applicant enlisted in the USAR.  She reenlisted on 9 September 1989 and she was involuntarily ordered to active duty in support of Operation Desert Shield on 29 November 1990.

3.  The applicant's record contains a Standard Form 89 (Report of Medical History) completed by the applicant on 4 December 1990.  She indicates she was in good health.  She was required to place a checkmark in the "Yes" or "No" block in response to medical questions identified as 15-24.  There was also a requirement to include a note of explanation to any "Yes" response.  She responded by placing a check mark in the "No" response to all the questions except for question 16 (Have You Ever Been Treated for a Mental Condition) which she left blank, providing no response.

4.  A Standard Form  513 (Consultation Sheet), dated 4 December 1990, documents a psychological evaluation of the applicant completed at Fort Bragg, North Carolina.  It indicates the applicant stated she suffered from schizophrenia which she had not reported to her USAR unit prior to entering active duty, but which she wanted to report once she entered active duty.  The applicant presented documents indicating she was hospitalized for this condition in 1988 and 1989.  The examining physician noted the applicant was taking medication for the condition.  The applicant suffered from schizophrenia, but there was no active disease.  The examining physician indicated the applicant was unfit for deployment/retention.  As a result, the applicant was released from active duty by reason of ETS and returned to her USAR unit.

5.  Orders, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, dated 3 January 1991, directed the applicant's release from active duty (REFRAD), not by reason of physical disability, effective 8 January 1991 and assignment to the 120th USAR Command.

6.  The DD Form 214 issued to the applicant upon her REFRAD on 8 January 1991 shows she was separated under the provisions of chapter 4, Army Regulation 635-200 (Personnel Separations), by reason of ETS and was assigned a separation program designator (SPD) code of LBK.

7.  On 18 May 1992 following a physical review board determination, the ARPERCEN Command Surgeon found the applicant was not medically qualified for retention.  On 24 June 1992, the applicant was honorably discharged from the USAR.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.

9.  Chapter 2 of Army Regulation 635-5 contains item-by-item instructions for the DD Form 214.  The instructions for item 25 (Separation Authority) state to obtain this information from the regulations or directives authorizing the separation.  The instructions for item 26 (Separation Code) state to enter the SPD code that corresponds to the regulatory authority and reason for separation.  This could differ for a Reserve Component (RC) Soldier ordered to active duty to support a contingency operation, in which case specific guidance will be provided in the announcement of the contingency operation.

10.  Army Regulation 635-200 sets policies, standards, and procedures for the administrative separation of enlisted personnel.  Chapter 4 contains guidance on separation by reason of ETS and provides for releasing RC Soldiers and transferring them to their RC upon completion of active duty.

11.  Army Regulation 635-40 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, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty 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 training.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change the SPD code on her 8 January 1991 DD Form 214 has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was ordered to active duty in support of Operation Desert Shield on 29 November 1990.  It further shows she reported a pre-existing medical condition at the mobilization site that she had not reported to her USAR unit prior to mobilization.  As a result, she was properly released from active duty by reason of ETS and returned to her USAR unit for further processing.  She was not eligible for disability processing when she was REFRAD as her condition was not incurred or aggravate while she was entitled to basic pay.

3.  Given the ultimate responsibility to process the applicant for discharge rested with her USAR unit, there is an insufficient evidentiary basis to support a change to the SPD code LBK assigned upon her REFRAD which is the proper code to assign to members separated by reason of ETS and returned to their RC.  The applicant was ultimately discharged from the USAR on 24 June 1992.

4.  The record shows the ARPERCEN command surgeon determined the applicant was not medically qualified for retention after review by a physical review board and, although the orders directing her USAR discharge are unclear in regard to the authority and reason for discharge, the applicant was ultimately discharged from the USAR on 24 June 1992.  Regardless of the ultimate reason for her USAR discharge, this would not have impacted the authority and reason and/or SPD code assigned at the time of her REFRAD.  As a result, there is an insufficient evidentiary basis to support granting the 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 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)                                         AR20110018727



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ABCMR Record of Proceedings (cont)                                         AR20110018727



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