IN THE CASE OF:	  

		BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120019968 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

	a.  item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the Purple Heart (PH) and the Combat Action Badge (CAB), and

	b.  item 28 (Narrative Reason for Separation) the reason for his discharge was "disability."

2.  The applicant states his DD Form 214 does not list all of his earned awards and incorrectly lists the reason for his discharge.

3.  The applicant provides:

* Orders 357-001, issued by Headquarters, Combined Joint Task Force Phoenix VI, Afghanistan, dated 23 December 2007
* DD Form 214
* Department of Veteran Affairs (VA) Letter, dated 26 January 2010

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.  With respect to the CAB:

	a.  Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, states in paragraph 2-5 that the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.

	b.  Requests for retroactive award of the CAB must be forwarded to the Commander, U.S. Army Human Resources Command (HRC), ATTN:
AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  This request may requested by letter.

	c.  The CAB may be requested by letter and must contain the following:

* assignment, attachment, or operational control orders
* a copy of the Soldier's Enlisted Record Brief
* a copy of the chain of command endorsement
* a one-page narrative description of the qualifying incident
* a certified copy of the DD Form 214
* any other supporting documentation

	d.  Since the applicant has not exhausted his administrative remedy with regard to this award, no further action on this issue can be taken at this time.  Should this issue not be satisfactorily resolved by HRC and the applicant still feels an error or injustice exists, he may submit another application with evidence of HRC's denial of his request.

	e.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant initially enlisted in the South Carolina Army National Guard (SCARNG) on 13 May 2004 for a period of 8 years.  He completed initial active duty training during the period 31 May - 30 August 2005, and he was awarded military occupational specialty 92A (Automated Logistical).

4.  On 5 February 2007, he was ordered to active duty in support of Operation Enduring Freedom (OEF).  

5.  Orders 357-001, dated 23 December 2007, awarded him the PH for being injured as a result of hostile action in Afghanistan on 4 November 2007.

6.  On 14 March 2008, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 4 by reason of completion of required active service and he was transferred to the Army National Guard of South Carolina.  He completed 1 year, 1 month, and 10 days of net active service this period.  The DD Form 214 he was issued at the time does not show award of the PH.  

7.  There are no medical records on file or provided by the applicant that indicate he suffered from a disabling medical condition that would have supported his separation processing through medical channels at the time of his REFRAD.

8.  The applicant provides a VA letter, dated 26 January 2010.  It shows he was granted a 100 percent service-connected disability rating.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) and 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.  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 his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

10.  Paragraph 2-2b of the same regulation provides guidance on presumptions of fitness and states that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness that can be overcome only by clear and convincing evidence that he was unable to perform his/her duties.

11.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of any VA rating does not establish error or injustice by the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian 
employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  Orders awarded the applicant the PH for being injured as a result of hostile action in Afghanistan on 4 November 2007.  Therefore, his DD Form 214 should be corrected to show this award.

2.  The applicant contends his DD Form 214 should be corrected to show his narrative reason for separation as "disability" based on the 100 percent service-connected disability rating he was granted by the VA on 26 January 2010.  However, there is insufficient evidence to support this claim.

3.  The evidence of record confirms he was REFRAD by reason of completion of required active service as evidenced and he was transferred to the SCARNG to complete his remaining Reserve obligation.  By regulation, a member's continued performance of duty creates a presumption of fitness that can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties.

4.  The evidence of record provides no indication the applicant was ever treated for or was suffering from a disabling mental or medical condition at the time of REFRAD that would have supported his separation processing through medical channels.

5.  Absent any evidence to show the applicant had a medical condition that rendered him incapable of reasonably performing the duties of his office, grade, 
rank, or rating during his active duty service, there is an insufficient evidentiary basis for granting this portion of the applicant's requested relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by adding to item 13 his DD Form 214 the Purple Heart.

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 changing the narrative reason for separation as reflected in item 28 of his DD Form 214.



      ___________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)                                         AR20120019968



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120019968



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1