IN THE CASE OF:	   

		BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120006746


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 his date of discharge from the U.S. Army Reserve (USAR).

2.  The applicant states:

* he enlisted in the Regular Army for 4 years on 14 May 1998
* after completing his active service obligation, he received an “honorable discharge certificate” on 13 May 2002
* he was retained in the Individual Ready Reserve (IRR) for another 4 years until 24 March 2006, the conclusion of his 8-year obligation
* he received an Honorable Discharge Certificate dated 3 October 2005, but he should have been retained in the IRR and discharged on 24 March 2006, at the conclusion of his 8-year obligation
* he later learned he was discharged in 2005 for medical reasons 
* he was never aware of a military medical board before which he appeared
* he finds it inexcusable to have been discharged 5 months early

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 May 2002
* DD Form 256A (Honorable Discharge Certificate), dated 3 October 2005
* DD Form 2808 (Report of Medical Examination), dated 22 November 2006
* DA Form 71 (Oath of Office – Military Personnel), dated 27 February 2007
* DD Form 2808, undated
* DD Form 214, for the period ending 10 March 2009
* Orders D-01-200907, issued by U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 19 January 2012
* DD Form 256A, dated 17 January 2012

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.  On 25 March 1998, the applicant enlisted in the USAR Delayed Entry Program.

3.  On 14 May 1998, he enlisted in the Regular Army for a 4-year term.  He entered active duty, completed initial entry training, and was awarded military occupational specialty 63T (Bradley Fighting Vehicle System Mechanic).

4.  On 13 May 2002, after completing 4 years of active service, he was honorably released from active duty at the completion of his required period of active service and transferred to the IRR.  The DD Form 214 he was issued shows his Reserve Obligation Termination Date was 24 March 2006.

5.  On 13 April 2004, he underwent a periodic physical examination.  His DD Form 2808 shows he was determined to have a physical profile of 1-3-3-2-1-1.  This physical profile was approved on 28 April 2004.  His examining physician found him not qualified for service.

6.  On 7 December 2004, the Physical Review Board at HRC found him unfit for further service and referred his case to a Medical Evaluation Board (MEB) in accordance with Army Regulation 40-501 (Standards of Medical Fitness). 

7.  On 8 December 2004, his physical profile was changed to 1-3-3-3-1-1.

8.  On 29 November 2004 and 27 January 2005, he was notified in writing of his medical disqualification for future retention.  He acknowledged notification of medical disqualification for future retention in the active Reserve, and/or entry on active duty, and he elected discharge from the Army Reserve.  He authenticated these forms by placing his signature in the appropriate block.

9.  On 17 March 2005, the Command Surgeon, HRC-St. Louis, notified the Director, Regional Soldier Support Center (RSSC), HRC-St. Louis, of the applicant's lack of qualification for continued military service and his desire for discharge from the USAR.  The Command Surgeon requested the RSSC process him for discharge in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

10.  Orders D-10-532231, issued by HRC-St. Louis, dated 3 October 2005, honorably discharged him from the USAR effective 3 October 2005.

11.  Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and the USAR.  Chapter 15 governs the separation of Soldiers for other miscellaneous reasons.  Paragraph 15-1k provides the authority to separate Soldiers who are medically unfit for retention.  It states that discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness, in accordance with Army Regulation 40-50, unless the Soldier requests and is granted a waiver under Army Regulation 40-501, as applicable; is determined fit for duty under a non-duty related Physical Evaluation Board fitness determination; or is eligible for transfer to the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his effective date of discharge from the USAR should be changed to 24 March 2006, 8 years after his date of enlistment.

2.  The evidence of record shows he enlisted in the USAR for an 8-year term on 25 March 1998.  His DD Form 214, for the period ending 13 May 2002, correctly reflects his Reserve Obligation Termination Date as 24 March 2006; however, he was found medically unfit for retention, and when notified of his medical unfitness, he voluntarily elected to be discharged from the USAR prior to his Reserve Obligation Termination Date.

3.  In view of the foregoing, there is an insufficient basis to grant relief in this case.
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)                                         AR20100020194



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ABCMR Record of Proceedings (cont)                                         AR20120006746



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