IN THE CASE OF:	  		

		BOARD DATE:	  	  16 December 2008

		DOCKET NUMBER:  AR20080015386 


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 discharge document to show he served on active duty (in lieu of active duty for training), that he was awarded the National Defense Service Medal, and that he was medically discharged.

2.  The applicant states, in effect, he was ordered to active duty to attend basic training (BT) and advanced individual training (AIT); however, his discharge document shows his service as “active duty for training.”  He also states he was awarded the National Defense Service Medal for 90 days of active service during the Gulf War.  However, the award is not on his discharge document and the Department of Veterans’ Affairs (VA) disputes his claim.  The applicant further states that he was not very good in the military occupational specialty (MOS) he was awarded (i.e., MOS 63B, Wheel Vehicle Mechanic), and he was worried that he would be deployed overseas and he would be unable to perform his duties.  He adds that he became sick and started seeing things.  Soldiers were getting on his nerves with their illegal heavy drinking, and worrying about the Gulf War added to his condition.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 22 August 2008.

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’s military personnel records contain a DD Form 4 (Enlistment/ Reenlistment Document - Armed Forces of the United States), dated 10 February 1989 with Annexes A - D that show he enlisted in the Army National Guard of the United States (ARNGUS) for a period of 8 years on 10 February 1989.

     a.  Annex A to DD Form 4 (Enlistment/Reenlistment Agreement - Army National Guard), in pertinent part, shows the applicant acknowledged with his initials that he understood he would undergo training in MOS 63W.

     b.  Annex B to DD Form 4 (Enlistment Bonus Agreement - Army National Guard), in pertinent part, shows the applicant acknowledged with his initials the statement indicating “I am currently attending a secondary school and will graduate within 18 months of enlistment or before entry on second phase of IADT [Initial Active Duty Training] under the Split Training Option.”

     c.  Annex C to DD Form 4/DA Form 4836 (Student Loan Repayment Program Agreement - Army National Guard), in pertinent part, shows the applicant acknowledged with his initials the statement indicating “I am currently attending a secondary school and will graduate within 18 months of enlistment or before entry on second phase of initial active duty training (IADT) under the Split Training Option.”

     d.  Annex D to DD Form 4 (Split Training Option), in pertinent part, shows the applicant acknowledged that he understood that enlistment for the Split Training Option provides that “I must enter on Initial Active Duty for Training (IADT) to undergo the common BT program at an active military installation.”  This document also shows that the applicant acknowledged, in pertinent part “[i]f for any reason I am unable to successfully complete AIT during the period for which I was ordered on IADT, then I agree to…remain on IADT for such additional period as is required to become qualified in my selected MOS.”  This document further shows that the applicant acknowledged “I understand that BT and AIT are considered IADT and the minimum period of time I must spend on IADT is 12 weeks.”  The applicant and a noncommissioned officer serving as Guidance Counselor, Military Entrance Processing Station (MEPS), placed their signatures on the document.

3.  There are no orders in the applicant’s military personnel records that show he was ordered to active duty in 1989 or 1990.

4.  The applicant’s military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 35 (Record of Assignments) shows, in pertinent part, the applicant enlisted on 10 February 1989 and was ordered to 9 weeks IADT per Headquarters, MEPS, New Haven, Connecticut, Orders Number 29-003, dated 10 February 1989, with a reporting date of 29 June 1989.  This item also shows, in pertinent part, the applicant was ordered to 15 weeks training per Headquarters, MEPS, New Haven, Connecticut, Orders Number 51-18, dated
13 March 1990, with a reporting date to AIT of 26 July 1990.  Item 4 (Assignment Considerations) is absent an entry.  Item 9 (Awards, Decorations, and Campaigns) shows he was awarded the Army Reserve Components Achievement Medal, National Defense Service Medal, Army Service Ribbon, and Army Reserve Components Overseas Training Ribbon.  

5.  The applicant’s military personnel records are absent any evidence that he was referred to a Medical Evaluation Board or Physical Evaluation Board.

6.  The applicant's military personnel records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered active duty for training on 26 July 1990, was awarded MOS 63W1O (Wheel Vehicle Repairer), and honorably released from active duty training (ADT) on 9 November 1990.  At the time he had completed 0 years, 3 months, and 14 days of net active service this period; 0 years, 2 months, and 3 days of total prior active service; and
1 year, 1 month, and 13 days of total prior inactive service.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Army Service Ribbon and Marksman Marksmanship Qualification Badge with Rifle Bar.  The DD Form 214 also shows the authority for the applicant’s separation was Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-9 (Reserve Component personnel upon completion of MOS training).  Item 26 (Separation Code) contains the entry “MCD.”

7.  The applicant's military personnel records contain an NGB Form 22 (National Guard Bureau - Report of Separation and Record of Service) that shows he enlisted on 10 February 1989, completed the 16-week course for MOS 63W (Wheel Vehicle Repairer) in November 1990, was awarded MOS 63W (Wheel Vehicle Repairer) on 8 November 1990, and was discharged under honorable conditions on 9 February 1995.  At the time he had completed 6 years, 0 months, and 0 days of net service this period and 6 years, 0 months, and 0 days of total service for pay.  Item 15 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Army Reserve Components Achievement Medal, National Defense Service Medal, Army Service Ribbon, and Army Reserve Components Overseas Training Ribbon.  The NGB Form 22 also shows that the authority for the applicant’s separation was National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27g (Unsatisfactory participant/expiration of active Guard commitment).

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit 
because of physical disability to reasonably perform the duties of his or her 
office, grade, rank, or rating.  Chapter 3 (Policies), paragraph 3-1 (Standards of unfitness because of physical disability), in pertinent part, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 16  (Selected Changes in Service Obligations), paragraph 16-9, in pertinent part, provides for the separation or release from active duty for Reserve Component personnel upon completion of MOS training.

10.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  Chapter
1 (General), paragraph 1-3 (DD Form 214 - Report of Separation from Active Duty), states a DD Form 214 will be issued to all personnel at time of retirement, discharge, or release from the Active Army, including each member of the Reserve Components (RC) released after completion of more than 89 days of active duty training (ADT) or full-time training duty (FTTD).

11.  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 “MCD” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 16-9.
12.  Army Regulation 600-8-22, as amended, provides that the National Defense Service Medal is awarded for honorable active service for any period between
27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 to a date to be determined.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge document should be corrected to show he served on active duty in lieu of IADT.  He also contends that he was awarded the National Defense Service Medal, and that he should be medically discharged.

2.  The evidence of record shows upon enlistment in the ARNGUS, the applicant acknowledged he understood that enlistment for the Split Training Option provided that he must enter an IADT status to undergo BT and his attendance at BT and AIT were considered IADT.  In addition, the evidence of record shows that the applicant was ordered to IADT for BT and subsequently ordered to ADT for AIT.  There is no evidence of record, and the applicant provides insufficient evidence to show he was ordered to active duty (i.e., other than for IADT and ADT) at any time during the period of service under review.  Therefore, in view of the foregoing, the applicant provides insufficient evidence in support of his claim and he is not entitled to correction of his records with respect to active service.

3.  Records show the applicant served a qualifying period of honorable active service during the period 2 August 1990 through 9 November 1990 for award of the National Defense Service Medal.  Therefore, it would be appropriate to correct his DD Form 214 to show this service medal.  

4.  The applicant’s request for medical discharge was carefully considered.  The evidence of record shows the applicant was released from IADT on 9 November 1990 based upon completion of MOS training, he continued to serve in the ARNGUS, and he was discharged based on unsatisfactory participant/expiration of his active Guard commitment on 9 February 1995.  There is no evidence of record that shows the applicant was found unfit or unfit for retention in the military during the period of service under review.  Therefore, in view of the foregoing, the applicant provides insufficient evidence in support of his claim and he is not entitled to correction of his records with respect to the type of separation and/or discharge.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the National Defense Service Medal to Item 13 of his DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to active duty service and a medical discharge.




      _______ _   _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)                                         AR20080015386



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ABCMR Record of Proceedings (cont)                                         AR20080015386



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