IN THE CASE OF:	  

		BOARD DATE:  17 May 2012

		DOCKET NUMBER:  AR20110020744 


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 her honorable discharge be changed to a 20-year retirement in the rank/grade of staff sergeant (SSG)/E-6.

2.  The applicant states:

* she was an SSG/E-6 and if any rank was taken, she should have retained the rank/grade of sergeant (SGT)/E-5
* she should have been retained in the Army and she would have retired with 20 years of qualifying service
* she had personal issues to contend with before and now she feels this is her opportunity to get this situation resolved

3.  The applicant provides:

* two letters to her Congressional representatives
* one letter to her commander
* Family Care Plan
* DD Form 458 (Charge Sheet)
* 49 pages of extracts from her military personnel records, medical records, and pay records

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.  The applicant enlisted in the Regular Army on 29 August 1992.  She completed training and was awarded military occupational specialty 92G (Food Service Operations).

3.  Prior to the applicant's discharge, the following occurred:

	a.  The Behavior and Stress Management Center, Incorporated, American Board of Psychiatry and Neurology, Addiction Medicine, Child, Adolescent, Adult Psychiatry, Colonial Heights, VA, prepared a letter, dated 14 July 2006, indicating the applicant must be present with her son for his appointments  due to his condition.

	b.  A DA Form 4856 (Developmental Counseling Form), dated 28 July 2006, shows the applicant had a valid Family Care Plan.

	c.  On 16 October 2006, the applicant was directed to report the following morning at 0630 hours in support of a battalion field training exercise.  She was told she needed to be ready for movement, as her culinary expertise was needed in support of the exercise for 10 days.

	d.  The applicant reported to her assigned unit on 17 October 2006 at 0630 hours without any field gear and explained she was not ready for movement because she had no one to care for her child.

	e.  The applicant was ordered to go and get her personal issues in order and to return to the battalion headquarters at 1300 hours due to the fact she had a current family care plan.

	f.  The applicant reported at 1300 hours, but failed to obey orders, as she was not prepared for movement to the field.

	g.  Orders 296-103, Headquarters, 49th Quartermaster Group, Fort Lee, VA, dated 23 October 2006, promoted the applicant to SSG/E-6 with a promotion effective date and date of rank of 1 November 2006.

	h.  Orders 319-001, Headquarters, 49th Quartermaster Group, Fort Lee, VA, dated 15 November 2006, revoked Orders 296-103.

	i.  On 22 January 2007, the following charges were preferred against the applicant:

*	charge I – violation of Article 86, Uniform Code of Military Justice (UCMJ)

*	specifications 1-3 – on or about 17 October 2006, without authority, fail to go at the prescribed time (0630, 1300, and 1900 hours) to her appointed place of duty in support of a field exercise training movement.
*	specification 4 – on or about 17 October 2006, without authority and with intent to avoid a field exercise, absent herself from her place of duty until on or about 29 October 2006

		*	charge II – violation of Article 91, UCMJ

*	specification 1 – on or about 17 October 2006, willfully disobey a lawful order of "at ease" by a noncommissioned officer

3.  On 12 April 2007, the applicant was notified by her commander of the intent to initiate separation action against her under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 5, for parenthood.  He indicated he was recommending an honorable discharge and that she not be transferred to the Individual Ready Reserve (IRR).

4.  On 13 April 2007, the applicant's battalion commander concurred with the applicant's separation and recommended she be separated with a general discharge.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 5, and directed the issuance of a general discharge under honorable conditions and that she not be transferred to the IRR.  On 30 April 2007, the applicant was discharged accordingly.  She completed 14 years, 7 months, and 2 days of active military service.

5.  On 15 May 2007, and with a waiver, the applicant enlisted in the U.S. Army Reserve in the rank/grade of SPC/E-4.

6.  A Standard Form 507 (Medical Record), dated 17 June 2008, contains the following and includes extracts from the applicant's Department of Veterans Affairs (VA) rating decision dated 1 January 2008:

	a.  Adjustment Disorder with Depressed Mood and Trichotillomania, 50 percent effective 1 May 2007, for occupational and social impairment with reduced reliability and productivity due to such symptoms as:  flattened affect; circumstantial, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex command; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

	b.  Migraine headaches, 30 percent effective 1 May 2007 for characteristic prostrating attacks occurring on an average of once a month over the last several months.  At VA examination Soldier reported having recurring headaches which are very painful.  The headaches start over the eye area and the neck line is very tense.  When the headache attacks occur, Soldier has to stay in bed and is unable to do anything.  The headache attacks average three times per month and each attack last for 2 hours.  The current treatment is Butalbital, Midrin or Imitrex.

	c.  Does not meet medical retention standards in accordance with Army Regulation 40-501:

* 3-36, Adjustment Disorder with Depressed Mood and Trichotillomania
* 3-32, Depression
* 3-33, Anxiety and Panic Attacks
* 3-30g, Migraine Headaches

7.  The applicant's permanent physical profile, dated 17 June 2008, was coded as "322123" of the physical profile serial system factors and PULHES ([P]hysical capacity or stamina, [U]pper extremities, [L]ower extremities, [H]earing and ears, [E]yes, and p[S]ychiatric) with limitations prohibiting assignment or deployment to overseas areas where definitive medical was not available.

8.  The results of the applicant's retention physical examination, dated 22 May 2008, shows she was found fit for retention and non-deployable.

9.  On 31 October 2008, the Army Discharge Review Board upgraded the applicant's general discharge to an honorable discharge.

10.  Orders Number 11-075-00027, Headquarters, 99th Regional Support Command, Fort Dix, NJ dated 16 March 2011, show the applicant was released from her current assignment for being medically disqualified and transferred to the Retired Reserve effective 15 April 2011, in the rank/grade of SPC/E-4.

11.  On 13 March 2012, the applicant was notified of her eligibility for retired pay at age 60 (15-year letter).

12.  There are no promotion orders which show she was ever promoted to SSG/E-6.

13.  Army Regulation 635-200, paragraph 5-8 (Involuntary Separation Due to Parenthood), states, in pertinent part, Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities.  Specific reasons for separation because of parenthood include inability to perform prescribed duties satisfactorily, repeated absenteeism, repeated tardiness, inability to participate in field training exercises or perform special duties such as charge of quarters and staff duty noncommissioned officer, and non-availability for worldwide assignment or deployment according to the needs of the Army.

14.  Title 10, U.S. Code, section 1372, states unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or section 1204 of this title, or whose name is placed on the TDRL under section 1202 or section 1205 of this title, is entitled to the grade equivalent to the highest of the following:

	a.  the grade of rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired;

	b.  the highest temporary grade of rank in which he served satisfactorily, as determined by the Secretary of the Armed Force from which he is retired;

	c.  the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination; or

	d.  the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

15.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) states separation will be accomplished by separation authorities when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is granted a waiver under Army Regulation 40-501 (Standards of Medical Fitness) or is eligible for transfer to the Retired Reserve.

16.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states to enter the active duty grade or rank and pay grade at the time of separation.

17.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U.S. Code by adding section 12371b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b states that a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability pay, for the purpose of section 12371 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 years and less than 20 years of service and, at the time, the last 8 years of qualifying service was in the Reserve Components.  A qualifying year is one in which a Reserve Soldier earns 50 retirement points or more.

18.  The law has changed the number of qualifying years that a Soldier must have in order to qualify for a Reserve retirement a number of times, but the number of qualifying years required has always been determined by the date the Soldier attained 20/15 qualifying years of service without regard to component.  For example, during the period 5 October 1994-31 December 2001, the last 6 years of qualifying service must have been served in a Reserve Component.  During the period 1 January 2002-30 September 2002, the required number of years was 8.  During the period 1 October 2002-25 April 2005, it was again 6.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for the rank/grade of SGT/E-5 and a 20-year retirement was carefully considered.

2.  Orders promoting the applicant to SSG/E-6 with a promotion effective date and date of rank of 1 November 2006 were revoked.  There is no evidence that shows she was promoted to SSG/E-6 subsequent to that action.

3.  Records show the applicant received NJP for failure to go on three occasions and was reduced in rank/grade from SGT/E-5 to SPC/E-4 on 5 February 2007.

4.  The applicant was discharged from the Regular Army on 30 April 2007 in the rank/grade of SPC/E-4.  She enlisted in the U.S. Army Reserve in rank/grade of SPC/E-4 on 15 May 2007.  There is no evidence of record that shows she was appointed to a higher pay grade before her discharge from the Regular Army or her placement in the Retired Reserve.  Therefore, there is insufficient evidence on which to amend her rank/grade to SGT/E-5.

5.  Although the applicant argues she would have retired with 20 years of service, her medical conditions rendered her unfit and non-deployable prior to reaching 20 years of service.  Therefore, there is insufficient evidence to grant the applicant a 20-year retirement.

6.  In view of the foregoing, there is insufficient evidence to grant the applicant's request.

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)                                         AR20110020744



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110020744



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1