IN THE CASE OF:	  

		BOARD DATE:  31 May 2012

		DOCKET NUMBER:  AR20110023056

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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his discharge date was no later than 31 December 2009.

2.  The applicant states he would not have taken terminal leave that extended past his normal separation date if he had known about the Physical Disability Board of Review (PDBR) and the Physical Evaluation Board (PEB).  

3.  The applicant provides:

* Email from the PDBR, dated 31 August 2011
* Letter from the PEB, dated 26 August 2009
* DA Form 1698 (Oath of Extension of Enlistment), dated 11 September 2009
  
CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in the U.S. Army Reserve the applicant enlisted in the Regular Army on 12 October 2006 and held the military occupational specialty 88M (Motor Transport Operator).  

2.  His record contains discharge Orders Number 154-0003, issued by the Installation Management Command, Europe, Mannheim Transition Center, Germany, on 3 June 2009.  These orders established his date of discharge as 
16 November 2009.

3.  His record contains a DA Form 199 (PEB Proceedings), dated 10 August 2009.  The PEB found him physically unfit and recommended a combined disability rating of 20 percent and separation with severance pay.  

4.  On 14 August 2009, he signed the DA Form 199, concurred with the PEB's findings and waived his rights to a formal hearing; however, on 17 August 2009, he requested to change his concurrence and waiver of rights.  He stated he did not concur with the PEB findings, demanded a formal hearing with a personal appearance, and requested counsel.

5.  He provided a letter from the U.S. Army PEB, Walter Reed Army Medical Center, dated 26 August 2009.  This letter states his formal PEB had been rescheduled to 22 September 2009.

6.  He provided a DA Form 1695, dated 11 September 2009, which shows he extended in an active duty status for 3 months, which extended his expiration term of service date from 16 November 2009 to 16 February 2010.

7.  On 8 October 2009, he sent an email to the PEB Liaison Officer (PEBLO) wherein he stated he was waiving his formal disability hearing and accepting the findings and recommendations of the initial PEB.

8.  His records contain a memorandum for the president of the PEB, wherein he stated he had been properly advised of his legal rights by the PEBLO, and thusly decided to waive his request for a formal PEB hearing.  He further stated he was in agreement with the initial informal PEB proceedings.  It appears the dates within this memorandum may be incorrect.  It is likely the memorandum was prepared on 10 September 2009.

9.  His record contains a revocation Order Number 288-0002, issued by the Host Nation Liaison Operating Activity, Mannheim Transition Center, Germany, on 
15 October 2009.  These orders revoked discharge Orders Number 154-0003.

10.  His record contains discharge Orders Number 288-0005, issued by the Host Nation Liaison Operating Activity, Mannheim Transition Center, Germany, on 
15 October 2009.  These orders established his date of discharge as 12 January 2010, and show he was awarded a 20 percent disability rating and he was authorized severance pay.

11.  He was honorably discharged from active duty on 12 January 2010.  His 
DD Form 214 lists his narrative reason for separation as "disability, severance pay, non-combat related."  

12.  In an email that he sent to the PDBR on 9 August 2011 he stated he had been discharged from active duty on 12 January 2010, his PEB was completed on September 2009, and he had taken terminal leave from October 2009 until his date of discharge.  He stated that 3 months prior to his discharge date he extended to allow him time to complete a formal PEB, which he later found he did not need.  He informed the PDBR that he had received a 20 percent disability rating from the Regular Army and asked if he could apply to the PDBR for consideration.

13.  The PDBR responded to his inquiry on 31 August 2011 and essentially informed him that he was not qualified for consideration because he was discharged outside of the eligibility dates established by the National Defense Authorization Act of 2008, which states in U.S. Code (USC), Title 10, subtitle A, part II, chapter 79, section 1554a that only personnel who were separated from military service from 11 September 2001 to 31 December 2009 are eligible for consideration by the PDBR.

14.  USC, Title 10, subtitle A, part II, chapter 79, section 1554a states the Secretary of Defense shall establish within the Office of the Secretary of Defense a board of review to review the disability determinations of covered individuals by Physical Evaluation Boards.  The board shall be known as the “Physical Disability Board of Review.”  The Physical Disability Board of Review shall consist of not less than three members appointed by the Secretary.  Covered individuals are members and former members of the armed forces who, during the period beginning on 11 September 2001, and ending on 31 December 2009 are separated from the armed forces due to unfitness for duty due to a medical condition with a disability rating of 20 percent disabled or less, and are found to be not eligible for retirement. 

15.  Army Regulation 635-5 (Separation Documents) states that item 12 (Record of Service) should be completed using extreme care since post-service benefits, final pay, retirement credit, and so forth are based on this information.  Further, item 12b (Separation Date This Period) is the Soldier’s transition date.  This date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended for make-up of lost time, or retained on active duty for the convenience of the Government.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 1-29 (Effective Date of Discharge) states the discharge of a Soldier is effective at 2400 on the date of release when the Soldier is transferred to the USAR to complete a reserve obligation, transferred to the temporary disability 

retired list, for a Soldier who entered active duty from a Reserve Component and reverts to USAR or State ARNG control, release is effective at 2400 on the date of expiration of authorized travel time, and discharge for all reasons other than those set forth above is effective at 2400 on the date of notice of discharge to the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant essentially requests his date of discharge be changed to 
31 December 2009 so that he would be eligible for a PDBR.  He argues that he would not have taken transition leave past his normal separation date if he had known about the PDBR.

2.  Records are not corrected solely for the purpose of making an applicant eligible for veterans or other benefits, programs, or boards.  Every case is individually decided based upon its merits when an applicant makes a request.

3.  There is no evidence nor has the applicant provided evidence to show his discharge date was administratively incorrect.  His discharge date was based upon an extension that he requested.  Further, he signed this extension, and he signed his DD Form 214 indicating that the information was correct.  Therefore, there is no basis for 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 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)                                         AR20110022846



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ABCMR Record of Proceedings (cont)                                         AR20110023056



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