IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20110020953 


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 23 (Type of Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was retired from active duty by reason of physical disability.

2.  He states he:

* should have been retired instead of discharged because he served over 16 years of honorable service
* served during war and peacetime with an illness, he honored his oaths to serve to the fullest of his abilities
* couldn't continue anymore because of those facts
* was granted 30 percent disability rating for Post Traumatic Stress Disorder (PTSD) by the Department of Veterans Affairs (VA) while on active duty

3.  He provides:

* DD Form 214
* Addendum to application
* Military Retirement Fund, Fiscal Year 2000, Audited Financial Statements
* Letter from VA and Rating Decision
* Letter to congressman
* Letter from the U.S. Army Human Resources Command
* Chronological Statement of Retirement Points 



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 (RA) on 19 February 1985.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 13C (Tactical Fire Operations Specialist).  He was honorably released from active duty on 18 February 1988 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his Reserve obligation.  The DD Form 214 for this period indicates he completed 3 years of active military service.  

3.  He enlisted in the RA again on 17 May 1988 and he continued to serve on active duty through reenlistments.  

4.  His military personnel record contains a U.S. Army Enlisted Records and Evaluation Center memorandum, dated 31 August 2000, Subject:  Department of the Army (DA) Imposed Bar to Reenlistment Under the Qualitative Management Program (QMP).  This memorandum shows the Calendar Year (CY) 2000 Sergeant First Class Promotion/Selection Board determined he should be barred from reenlistment under the provisions of the QMP, after performing a comprehensive review of his records.  The DA Form 4941-R (Statement of Option) is not available.  

5.  He received a change of rater Noncommissioned Officer Evaluation Report (NCOER) covering the period October 1999 through March 2000.  This report indicates he was rated as an Assistant Battalion Fire Direction NCO of Headquarters and Headquarters Battalion, 2nd Battalion, 82nd Field Artillery, 1st Cavalry Division.  It does not indicate he could not perform his duties.  



6.  On 18 December 2000, he was honorably discharged under the provisions of paragraph 16-8, Army Regulation 635-200 (Enlisted Personnel), by reason of reduction in force.  He had completed 15 years, 7 months, and 2 days of net active service.  The DD Form 214 he was issued for this period indicates he received separation pay in the amount of $20,986.56.  

7.  He provided a VA Rating Decision, dated 15 February 2011, which indicates he was granted service-connection for PTSD with a 30 percent disability rating.  

8.  His Chronological Statement of Retirement Points, dated 16 November 2011, indicates he had 16 years and 2 days of qualifying years for retirement.

9.  Title 10, U. S. Code, section 1315, provided the Temporary Early Retirement Authority (TERA) for the active force for the period 23 October 1992 through 
31 December 2001.  The Secretary of the Army could authorize a member with at least 15 but less than 20 years of creditable service a length of service retirement.  Individuals who were pending involuntary separation, pending trial by court-martial, or under investigation for UCMJ offenses which the immediate commander believed could result in trial by court-martial or involuntary separation, were ineligible to apply for early retirement.  

10.  Army Regulation 601-280 (Total Army Retention Program) set forth policy and prescribed procedures for denying reenlistment under the QMP.  This program was based on the premise that reenlistment was a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It was designed to enhance quality of the career enlisted force, selectively retain the best qualified Soldiers for up to 30 years of active duty, deny reenlistment to non-progressive and nonproductive Soldiers, and encourage Soldiers to maintain their eligibility for further service. 

11.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened by the DA promotion selection boards.  The appropriate selection boards evaluate past performances and estimate the potential of each Soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.  

12.  Army Regulation 635-200 prescribes the Army's enlisted administrative separation policy.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-8 provides for the early separation of Soldiers due to reduction in force, strength limitations, or budgetary constraints.  It states that Soldiers may be separated prior to expiration of enlistment of fulfillment of active duty obligation when authorization limitations, strength restrictions, or budgetary constraints require the RA active duty enlisted force to be reduced in number.

13.  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.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty.

14.  Title 38, U.S. Code, sections 1110 and 1131, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been retired for disability instead of discharged because he served over 16 years of honorable service is acknowledged.  

2.  The evidence of record shows he was presented with a DA Imposed Bar to Reenlistment after a review of his records by the CY00 Sergeant First Class Promotion/Selection Board.  Although his Statement of Options is not available, it appears he elected separation under the provisions of Army Regulation 635-200, chapter 16-8.

3.  His service record is void of evidence which indicates he was diagnosed with a medical condition that required processing through the Physical Disability Evaluation System.  His last NCOER gave no indication that he was medically unfit to perform his duties.

4.  In the absence of evidence to the contrary, the applicant's continued performance of duty raises a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury related to his separation.
5.  In addition, the TERA policy in effect at the time of his discharge did not provide for allowing Soldiers who faced involuntary separation under QMP to retire under the TERA provisions.  

6.  Although the VA granted him service-connection for PTSD at a 30 percent disability rating, this does not determine an error or injustice was made by the Army at the time of his discharge.  

7.  The evidence of record confirms he was properly separated, by reason of reduction in force, as a result of the imposition of a DA bar to reenlistment under the QMP with entitlement to separation pay.  Therefore, there is no basis on which to grant 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 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)                                         AR20110020953





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ABCMR Record of Proceedings (cont)                                         AR20110020953



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