IN THE CASE OF:	  

		BOARD DATE:  8 November 2012

		DOCKET NUMBER:  AR20120008691 


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 reconsideration of his application for a correction of his date of separation.

2.  The applicant states the earlier decisional document was simply a repeat of the incorrect information on his discharge.  No attention was paid to his medical records that show he was improperly (fraudulently) separated.  His primary care doctor's plan for his rehabilitation was not considered.  He believes the Commander of the Warrior Transition Battalion repeatedly changed the authority for and/or the narrative reason for his separation. 

3.  The applicant provides copies of the prior ABCMR decisional document, the same documents utilized in his earlier application, and administrative letters related the processing of his reconsideration request.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100019948, on 1 March 2011.

2.  The applicant's contention that the prior decisional document did not address his medical issues is a new argument warranting an additional review.

3.  The available medical records consist of only two periodic physical examinations, dated 12 October 2001 and 5 July 2006.  It is noted on the 2006 examination that the applicant was given a permanent physical profile due to hearing loss and bunions.  The applicant indicated a sworn statement from his primary care physician was forthcoming; however as of this time no such statement has been received.

4.  The applicant, a U.S. Army Reserve (USAR) major, was ordered to active duty in support of Operation Enduring Freedom under U.S. Army Human Resources Command (HRC) Orders Number 08-204-00028, dated 22 July 2008. (A copy of these orders are not included in his official record.)

5.  HRC Orders A-04-911039, dated 14 April 2009, retained the applicant on active duty to "participate in Reserve Component Warriors In Transition Medical Retention Processing Program for the purpose of medical evaluation (emphasis added)."  He was ordered to report to Fort Bragg on 14 April 2009 for a period of 30 days.

6.  HRC Orders A-04-912129, dated 27 April 2009, retained the applicant on active duty to "participate in Reserve Component Warriors In Transition Medical Retention Processing Program for completion of medical care and treatment" (emphasis added).  He was to report to Fort Bragg on 14 May 2009 for a period of 328 days with an end date of 6 April 2010.  The Orders state that "upon completion of this duty, unless sooner released, you will return to your home and upon arrival be released from active duty.

7.  On 13 August 2009 HRC forwarded a memorandum to the Commander, Transition Service Office, Fort Bragg, approving a request for an early REFRAD and directed the applicant be released not later than 24 September 2009.  The record contains no supporting documentation to show who or why the request was submitted. 

8.  U.S. Army Installation Management Command Orders 229-0255, dated 17 August 2009, released the applicant from active duty, not by reason of physical disability, effective 25 August 2009.  He is shown to be eligible for Transitional Health Care until 24 February 2010.

9.  U.S. Army Installation Management Command Orders 232-0254, dated 20 August 2009, amended his release date to 20 August 2009 and his Transitional Health Care eligibility date to 19 February 2010.


10.  HRC Orders A-04-912129A01, dated 9 November 2009, amended the HRC Orders A-04-912129 to show an end date change from 6 April 2010 to 20 August 2009.

11.  The applicant was released from active duty and transferred to the USAR Control Group (Reinforcement) effective 20 August 2009.  The separation authority is shown as Army Regulation 600-8-24, paragraph 2-7 with a narrative reason for separation as completion of required active service.  His DD Form 214, at item 18 (Remarks), lists his orders as documented above.

12.  On 9 September 2009, the applicant submitted a request to the ABCMR to have his narrative reason for separation changed.

13.  On 7 June 2010, his request was administratively closed because he had failed to indicate what narrative reason he believed was appropriate. 

14.  On 23 June 2010, he responded to the 7 June letter by stating that his narrative reason for separation was correct but the date of separation was wrong. This letter appears to have been accepted as an amendment to the initial application and his case was processed as a request for a change to his date of separation (from 20 August 2009 to 10 April 2010).

15.  On 1 March 2011 the ABCMR denied his request to change his date of separation.

16.  On 28 July 2011, the applicant submitted a notification that he intended to appeal the ABCMR denial.  He continued his reconsideration request with additional statements submitted on 2 December 2011, 22 February 2012, and 27 April 2012.

17.  The applicant voluntarily transferred to the Retired Reserve effective 17 June 2011.

18.  Army Regulation 135-175 (Army National Guard and Army Reserve - Separation of Officers) defines the term "involuntary separation" as a separation based on cause (i.e., substandard performance of duty, moral or professional dereliction, or for security reasons).  There is no formal definition of the term "voluntary separation" in this or any other regulation. 

19.  Army Regulation 600-8-24 prescribes the policies and procedures for officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more.  Chapter 2 sets forth the tasks, rules, and steps for the REFRAD of RC officers.  Paragraph 2-7 (Titled: Rules for processing voluntary release from active duty due to expiration of active duty commitment) states applications for REFRAD may be submitted not earlier than 12 months or less than 6 months before the desired release date or beginning date of transition leave, whichever is the earliest.  The regulation does not specify who may submit the request for a REFRAD.

20.  Army Regulation 635-5 (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 establishes standardized policy for preparing and distributing the DD Form 214 and states that the entry at item 12b (Separation Date This Period) is the Soldier's transition date, their last date on active duty.  This date may not be the same as the contractual date if Soldier is separated early, voluntarily extends, or is extended to make up lost time, or retained on active duty for the convenience of the Government. 

DISCUSSION AND CONCLUSIONS:

1.  The record does not contain and the applicant has not provided any evidence that he was suffering from a medical condition warranting a physical disability evaluation or retention on active duty for medical treatment.

2.  As noted on the Army Installation Management Command orders, the applicant was entitled to continuing medical care under the provision of the Transitional Health Care through 19 February 2010.  The applicant has not provided any evidence to document whether or not he needed and/or availed himself of additional care under this program.

3.  The applicant's arguments surrounding the use of the term "voluntary" in the separation regulation are specious.  The applicant appears to be under the impression that the term "voluntarily" means that a service member has to take direct action to have the specific regulation apply.  This assumption is incorrect.  Army regulations provide for two categories of separations, voluntary and involuntary.  While there is no formal definition of the term "voluntary" by default if a separation is not involuntary, i.e. for cause, it has to be termed voluntary.  Therefore, the wording "voluntary" has no significance in this case. 

4.  The applicant's contention he should be shown to have served on active duty through 10 April 2010, is without merit.  HRC issued orders modifying the applicants periods of active duty.  First, to place him in the Reserve Component Warriors In Transition Medical Retention Processing Program and then twice more to amend the end date.  Based on the amendments to his end date, he was properly REFRAD on his amended end date, 20 August 2009.
5.  As stated in the previous review, the applicant was REFRAD on 20 August 2009, he did not serve on active duty after this date, and there is no evidence that he should have been allowed to do so.  Therefore, no relief is warranted.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100019948, on 1 March 2011.



      _______ _   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)                                         AR20120008691



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ABCMR Record of Proceedings (cont)                                         AR20120008691



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