IN THE CASE OF:	  

		BOARD DATE:	  26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080013041 


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 the Reserve obligation termination date and separation code shown on his discharge document.

2.  The applicant states, in effect, his DD Form 214 (Certificate of Release or Discharge from Active Duty), Item 6 (Reserve Obligation Termination Date) contains the entry "00000000" and it should be "24 July 2010."  He also states that item 26 (Separation Code) of his DD Form 214 contains the entry “MFR” and that he has been denied the 180 days of medical care that was authorized by the President because of the separation code.  The applicant adds that he asked Army recruiting officials for an explanation of the separation code, but they could not tell him what it meant.

3.  The applicant provides a copy of his DD Form 214 WS-Automated
(DD Form 214 Worksheet) with an effective date of 17 February 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show he enlisted in the Tennessee Army National Guard (TNARNG) for a period of six years on 1 March 1969.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 63H (Tracked Vehicle Mechanic).



2.  The applicant’s military personnel records contain a copy of Headquarters, TNARNG (STARC [State Army Reserve Center]), Nashville, Tennessee, memorandum, prepared on 4 December 1989, subject:  Notification of Eligibility for Retired Pay at Age 60 [commonly known as the 20-year letter].  This document shows, in pertinent part, the applicant was notified that, having completed the required years of service, he is eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, Chapter 67.  

3.  The applicant's military personnel records show he was ordered to active duty in support of Operation Iraqi Freedom on 17 March 2005.

4.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Human Resources Command (USA HRC), Alexandria, Virginia, Orders A-06-616374, dated 29 June 2006, that show the applicant was retained on active duty under the provisions of Title 10, U.S. Code, section 12301(d), and assigned to Medical Retention Center, Fort Gordon, Georgia for a period of 179 days ending on 23 December 2006.  The additional instructions section of the orders show, in pertinent part, the applicant will be entered into the Physical Disability Evaluation System (PDES) for disability processing at the earliest determination, or if the applicant is unable to return to full military duty, within one year of diagnosis of medical condition.  The additional instructions section also show that early separation/release from active duty (REFRAD) is required upon completion of medical care and treatment, or for separation by reason of physical disability.

5.  The applicant’s military personnel records contain a copy of Headquarters, USA HRC, Alexandria, Orders A-06-616374A03, dated 1 August 2007, that amended Headquarters, USA HRC, Alexandria, Orders A-06-616374, dated
29 June 2006, to show the applicant was assigned to Headquarters, Warrior Troop Battalion, Dwight D. Eisenhower Medical Center, Fort Gordon, effective
15 June 2007.

6.  The applicant’s military personnel records contain a DA Form 18 (Revised Physical Evaluation Board (PEB) Proceedings), dated 8 February 2008, that show the applicant was found physically unfit, recommended for a combined rating of 20 percent, and separation with severance pay, if otherwise qualified.  Item 11 (Exhibits) lists the documents that were considered in the applicant’s PEB proceedings and this item includes, in pertinent part, the applicant’s 20-Year Letter, Retirement Points, and Declination for Continuation on Army Reserve (COAR) status.  The DA Form 18 also shows that the PEB Proceedings were approved for the Secretary of the Army on 8 February 2008.

7.  The applicant’s military personnel records contain a copy of Headquarters, USA HRC, Alexandria, Orders A-06-616374R, dated 20 February 2008, that rescinded the unexecuted portion of the active duty order effective 17 February 2008.

8.  The applicant’s military personnel records contain a copy of Departments of the Army and the Air Force, Joint Task Force Headquarters, Tennessee National Guard, Nashville, Tennessee, Orders 052-859, dated 21 February 2008, that show the applicant was discharged from the ARNG effective 17 February 2008 and transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve), St. Louis, Missouri.

9.  The applicant's military personnel records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was ordered to active duty on 17 March 2005 in support of Operation Iraqi Freedom, served in Kuwait/Iraq from 26 June 2005 to 16 June 2006, and was honorably released from active duty on 17 February 2008 in accordance with the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(5), based on disability (other) and transferred to the USAR Control Group (Retired Reserve).  At the time of his separation the applicant had completed 2 years, 11 months, and 1 day of net active service this period; 3 years and 28 days of total prior active service; and 32 years,
11 months, and 18 days of total prior inactive service.  Item 18 (Remarks), in pertinent part, contains the entry, “SERVED UNDER RESERVE COMPONENT MEDICAL HOLDOVER MEDICAL RETENTION PROCESSING PROGRAM IAW [IN ACCORDANCE WITH] 10 USC 12301(D), 10 USC 1074(A), AND 12322 FROM 20060628 [28 JUNE 2006] TO 20080217 [17 FEBRUARY 2008]//THE SOLDIER HAS BEEN SEPARATED BY REASON OF PHYSICAL DISABILITY AND HAS SELECTED RESERVE RETIREMENT IN-LIEU OF SEVERANCE; NO SEVERANCE PAY IS AUTHORIZED.”  Item 6 contains the entry "00000000" and item 26 contains the entry “MFR.”

10.  Title 10, U.S. Code, section 12301 (Reserve components generally), paragraph d, in pertinent part, provides that, at any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member.

11.  Title 10, U.S. Code, section 12322 (Active duty for health care), in pertinent part, provides that a member of a uniformed service described in section 1074a(a), paragraph (1)(b) or (2)(b), section 174a(a) of this title, may be ordered to active duty and may be continued on active duty for a period of more than
30 days while the member is being treated for (or recovering from) an injury, illness, or disease incurred or aggravated in the line of duty as described in any of such paragraphs.

12.  Title 10, U.S. Code, section 1145 (Health benefits), in pertinent part, provides that transitional health care for a member identified in subsection 2a shall be available for 180 days beginning on the date on which the member is separated from active duty.  Title 10, U.S. Code, section 1145, subsection 2a applies to a member of the Armed Forces who is involuntarily separated (emphasis added) from active duty.

13.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 4-24 (Disposition by USA HRC), subparagraph b(5) provides for the transfer of a Soldier who has completed at least 20 qualifying years of Reserve service to the Inactive Reserve on the Soldier's request.

14.  Army Regulation 635-5 (Personnel Separations - 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 also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, the source documents for entering information on the DD Form 214 will be the Enlisted/Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File.

15.  Paragraph 2-4 (Completing the DD Form 214) of the Separation Documents regulation contains item-by-item instructions for completing the DD Form 214. The instructions for item 6 state that this is the completion date of the statutory military service obligation (MSO) incurred by a Soldier on initial enlistment or appointment in the Armed Forces.  Department of Defense policy requires a Soldier with no previous military service who enlisted or was appointed on or after 1 June 1984 to serve a period of 8 years.  The MSO starts on the date of initial enlistment or appointment in the Regular Army, Army National Guard, or the USAR to include the Delayed Entry Program (DEP).  DEP time is credited in computing this date.  For a Soldier discharged, dismissed, or dropped from the Army rolls, or with an expired MSO, enter "0000 00 00."  Soldiers within 90 days of their MSO termination date at separation are considered to have completed their MSO.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of “MFR” as the appropriate code to assign to enlisted Soldiers voluntarily released from active duty under the provisions of Army Regulation 635-40, paragraph 4-24b(5), based upon disability (other).

17.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the Reserve obligation termination date and separation code shown on his discharge document should be corrected because item 6 does not have an entry, Army recruiting officials could not explain to him what the SPD code meant, and he was denied 180 days of medical care.  However, the applicant provides insufficient evidence in support of his claim.

2.  The evidence of record shows the applicant completed his initial MSO on
28 February 1975.  The evidence of record also shows that the applicant was honorably REFRAD on 17 February 2008, discharged from the ARNGUS and TNARNG effective 17 February 2008, and transferred to the USAR Control Group (Retired Reserve).  Thus, the applicant did not have a Reserve obligation termination date at the time he transferred to the USAR Control Group (Retired Reserve).  Therefore, he is not entitled to correction of the entry shown in item 6 of his DD Form 214.

3.  The evidence of record further shows that the applicant was voluntarily separated by reason of physical disability and elected to be transferred to the Retired Reserve in lieu of severance pay.  The evidence of record also shows that the authority for this action was Army Regulation 635-40, paragraph
4-24b(5), disability (other), and the appropriate separation code of “MFR” was entered in item 26 of his DD Form 214.  Therefore, he is not entitled to correction of the SPD Code shown on his discharge document.

4.  The evidence of record shows that the applicant was voluntarily separated (emphasis added) from active duty.  The evidence of record also shows that transitional health care benefits shall be available for 180 days beginning on the 

date on which the member is involuntarily separated (emphasis added) from active duty.  Thus, the evidence of record does not support the applicant's contention that he is entitled to 180 transition health care.

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  The applicant fails to provide such evidence.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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.



      _________XXX__________
               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)                                         AR20080013041



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ABCMR Record of Proceedings (cont)                                         AR20080013041



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