IN THE CASE OF:	  

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20130009686 


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:

	a.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired;

	b.  restoration of his government educational benefits (GI Bill);

	c.  correction of his DD Form 214 to show his military occupational specialty (MOS) as 19K (M1 Armor Crewman);

	d.  correction of his DD Form 214 to show award of the Army Commendation Medal (ARCOM); and

	e.  correction of his DD Form 214 to show he completed his first full term of service.

2.  The applicant states he feels his MOS was incorrectly listed on his DD Form 214 and his ARCOM was mistakenly omitted.  He states he did indeed complete his first full term of service.  He feels these errors should be corrected because he served his country the best he could.  He contends he was suffering from post-traumatic stress disorder (PTSD) and a traumatic brain injury (TBI) as a result of his deployment to Iraq.  He further states he was refused medical help while serving on active duty.  He only received help after his discharge.  He is currently rated as 80-percent disabled with a further rating pending.

3.  The applicant provides:

* ARCOM Certificate, dated 8 May 2011
* Orders HO-158-0645, Headquarters, III Corps and Fort Hood, Fort Hood, TX, dated 7 June 2010
* Enlisted Record Brief (ERB)

CONSIDERATION OF EVIDENCE:

1.  The applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 10 January 2009, shows:

	a.  he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years;

	b.  he agreed that 2 years and 19 weeks of this enlistment were to be served on active duty in the Regular Army with the remaining 5 years and 33 weeks to be served in the USAR; and

	c.  he agreed to a delayed entry not to exceed 365 days.

2.  The applicant's DA Form 3286 (Annex A – Statement for Enlistment – U.S. Army Enlistment Program/U.S. Army Delayed Enlistment Program), dated 10 January 2009, shows he contracted for training in MOS 19K.

3.  On 3 February 2009, the applicant enlisted in the Regular Army.

4.  The applicant's DA Form 1695 (Oath of Extension of Enlistment), dated 17 December 2009, shows he extended his term of enlistment in the Regular Army for a period of 7 months.  This extension established an expiration of his term of service (ETS) date of 22 December 2011.  His total obligated active duty service was now 2 years, 7 months, and 19 weeks.

5.  Orders HO-158-0645, Headquarters, III Corps and Fort Hood, dated 7 June 2010, ordered the applicant to deploy to Iraq for duty with Company H, 2d Battalion, 3d Armored Cavalry Regiment, in support of Operation Iraqi Freedom, proceeding on or about 20 August 2010.

6.  The ARCOM Certificate, dated 8 May 2011, as provided by the applicant and filed in his Army Military Human Resource Record, shows Permanent Order Number 128-120, Headquarters, 3d Armored Cavalry Regiment, announced his award of the ARCOM for meritorious service during the period 25 August 2010 to 24 August 2011.

7.  A memorandum, Headquarters, 3d Armored Cavalry Regiment, dated 18 April 2012, subject:  Separation Under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14-12c(2), Misconduct-Abuse of Illegal Drugs, (Applicant), Lightning Troop, 4th Squadron, 3d Cavalry Regiment, Fort Hood, TX, states the commander directed his separation prior to the expiration of his current term of service with his service characterized as general under honorable conditions.  The commander determined that rehabilitation did not apply to this action and the applicant would not be transferred to the USAR.

8.  The applicant's ERB, dated 25 April 2012, shows:

	a.  his primary MOS as 19D (Cavalry Scout);

	b.  he was assigned to Company C, 2d Battalion, 81st Armor Regiment (Training), from 10 February 2009 to 25 June 2009 as a trainee in duty MOS 19K;

	c.  he was assigned to Company H, 2d Battalion, 3d Armored Cavalry Regiment, from 26 June 2009 to 29 January 2012 in duty MOS 19K;

	d.  he was deployed to Iraq from 26 August 2010 to 12 August 2011; and

	e.  he was assigned to the 3d Armored Cavalry Regiment Brigade Combat Team (Reconnaissance and Sustainment) from 30 January 2012 to present.

9.  On 7 May 2012, the applicant was discharged under honorable conditions (general).  His DD Form 214 shows he completed 3 years, 1 month, and 28 days of creditable active duty service.  He was assigned a separation program designator code of JKK and an reentry eligibility code of 4.  The narrative reason for his discharge was stated as "MISCONDUCT (DRUG ABUSE)."

10.  The applicant's DD Form 214 further shows:

	a.  his primary specialty as "19D1O  CAVALRY SCOUT – 2 YRS 10 MOS";

	b.  he was awarded or authorized the:

* Iraq Campaign Medal with two bronze service stars
* Army Achievement Medal (2nd Award)
* National Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Driver and Mechanic Badge with Mechanic Bar

	c.  he did not complete his first full term of service;

	d.  he had lost time from 11 December 2011 to 5 January 2012 (26 days) and from 7 to 18 January 2012 (12 days), totaling 38 days.

11.  The applicant's service medical records were not available for review.

12.  Army Regulation 635-5 (Separation Documents) provides a mandatory entry in the remarks block showing whether the Soldier has or has not completed his first full term of service.  To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment/reenlistment documents and compare the term(s) of enlistment to the net service in item 12c (Net Active Service This Period) of the DD Form 214.  If the Soldier has completed or exceeded the initial enlistment, enter "HAS."  If item 12c of the DD Form 214 is less than the Soldier's initial enlistment, enter "HAS NOT."

13.  Army Regulation 635-40 (Personnel Separations Physical Evaluation for Retention, Retirement, or Separation) provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include the commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  The misconduct is considered a commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge is or would be authorized for the same or a closely-related offense under the Uniform Code of Military Justice.

15.  Title 10, U.S. Code, chapter 61, provides for the disability retirement or separation of a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

16.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

17.  Title 38, U.S. Code, chapter 30, provides basic educational assistance entitlement for service on active duty to service members who are separated with an honorable characterization of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that:

	a.  his general discharge under honorable conditions should be corrected to show he was medically retired;

	b.  his government educational benefits should be restored (GI Bill);

	c.  his DD Form 214 should be corrected to show his MOS as 19K;

	d.  his DD Form 214 should be corrected to show award of the ARCOM; and

	e.  his DD Form 214 should be corrected to show he completed his first full term of service.

2.  The applicant's DD Form 214 and ERB indicate his primary MOS was 19D.  However, the applicant's enlistment documents clearly show he contracted for training in MOS 19K.  All of his subsequent assignments show a duty MOS of 19K.  There is no evidence of record showing the applicant was ever trained in MOS 19D or performed duty in this MOS.  There are no available documents supporting the entry of 19D on his ERB.  Therefore, it is reasonable to presume the 19D entry on his DD Form 214 was the result of an incorrect entry on his ERB.  Accordingly, it would be appropriate to correct his DD Form 214 to show his primary MOS as 19K.

3.  The evidence of record clearly shows he was awarded an ARCOM for meritorious service during the period 25 August 2010 to 24 August 2011.  Therefore, this medal should be added to his DD Form 214.

4.  The evidence of record clearly shows the applicant initially enlisted in the Regular Army for a period of 2 years and 19 weeks.  He subsequently extended this enlistment period by 7 months, establishing a total active duty commitment of 2 years, 7 months, and 19 weeks with an ETS of 22 December 2011.  He accrued 38 days of lost time which would have extended his ETS date to 29 January 2012.  However, he was not discharged until 7 May 2012.  His DD Form 214 credits him with active duty service during this period of 3 years, 1 month, and 28 days, which exceeds his initial term of service.  Therefore, he did complete his first full term of service and his DD Form 214 should be corrected to reflect this.

5.  The record shows the applicant was administratively discharged for misconduct due to the wrongful use of drugs.

6.  The available evidence of record indicates that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

7.  The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.

8.  The applicant's desire to have the reason for his discharge changed to permit a retirement due to a physical disability is found to be without merit.  There is no evidence of record showing he was physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.  There is no available evidence to substantiate his contention that he was suffering from PTSD or a TBI while serving on active duty, or that either of these conditions were contributing factors causing him to receive less than an honorable characterization of service.

9.  The applicant contends that he has been evaluated or is still undergoing evaluation by the Department of Veterans Affairs (VA) for a physical disability rating.  However, he has not provided any documentary evidence of such evaluation.  Furthermore, an award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

10.  The applicant's contention that his GI Bill entitlements should be restored has no merit.  Title 38, U.S. Code, chapter 30, clearly states that such entitlement is reserved only for those individuals with an honorable characterization of active duty service.

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 all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the current primary MOS entry from of his DD Form 214 and replacing it with the entry:  "19K1O  M1 ARMOR CREWMAN – 2 YRS 10 MOS";

	b.  adding award of the ARCOM to his DD Form 214;

	c.  deleting the statement:  "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE" from the remarks block of his DD Form 214; and

	d.  adding the statement:  "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE" to the remarks block of his DD Form 214.

2.  The Board further determined 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 his discharge or restoring his GI Bill entitlements.



_____________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)                                         AR20130009686



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ABCMR Record of Proceedings (cont)                                         AR20130009686



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