BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140004803 


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 her:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 May 2008 to show she completed her first term of service
* discharge orders from the U.S. Army Reserve (USAR), dated 23 November 2011, to show she was medically retired vice medically disqualified
* records to show she was separated/discharged/retired in the rank/grade of sergeant (SGT)/E-5 vice specialist (SPC)/E-4

2.  The applicant states, in effect:

	a.  She is requesting correction of her records to show a medical evaluation board (MEB) found that she was no longer able to fulfill her military duty obligations and she was medically retired instead of being medically disqualified.  
	b.  On 21 October 2011, she was informed by Staff Sergeant L_____ and Mr. S____ that her MEB was still being processed and her file had been sent to Florida due to her unit being deployed.  In December 2011, she went to a scheduled drill and was handed her USAR discharge orders, told her MEB had been boarded, she was no longer in the USAR, and to go home.


	c.  She went to the Department of Veterans Affairs (VA) to see about getting her MEB rating and she was told her Reserve unit at Fort Drum, NY, must have separated her as medically disqualified instead of having her records undergo an MEB.  This does not make sense to her and she wants her MEB relooked so she can be medically retired.

	d.  She also wants her DD Form 214 for the period ending 12 May 2008 corrected to show she completed her first term of service as she completed 1 year of service in the New York Army National Guard (NYARNG). 

	e.  She was a promotable SPC at the time she was released from active duty and she held the rank of SPC long enough to be advanced to the rank of SGT.

3.  The applicant provides:

* her DD Form 214 for the period ending 12 May 2008
* DD Form 215 (Correction to DD Form 214)
* 25 Standard Forms (SF) 600 (Chronological Record of Medical Care), dated between 13 February 2007 and 24 August 2008
* Enlisted Record Brief (ERB), dated 10 January 2008
* Orders 133-1009, dated 13 May 2009
* Honorable Discharge Certificate, dated 12 May 2009
* two pages of a VA Rating Decision Review, dated 15 September 2011
* Orders 11-297-00080
* a Discharge Plan from E.J. Noble Hospital, Gouverneur, NY, (the date of the form and hand-written instructions on this form are illegible)
* a page titled Coccyx Injuries
* a page with two points of contact, phone numbers, and an email address

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Kentucky ARNG (KYARNG) on 16 January 2006 for a period of 8 years in the rank/grade of private first class/E-3.  On 11 May 2007, she was promoted to SPC/E-4.  

2.  She entered active duty for training (ADT), completed basic combat training and advanced individual training, and was awarded military occupational specialty (MOS) 15P (Aviation Operations Specialist).  She was subsequently released from ADT to the control of the KYARNG. 

3.  On 30 September 2007, she was honorably discharged from the KYARNG in the rank of SPC for the purpose of enlisting in another component of the Armed Forces.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) she was issued shows she completed 1 year, 8 months, and 5 days of Reserve service during this period.

4.  On 1 October 2007, she enlisted in the Regular Army (RA) for a period of 3 years in the rank of SPC and MOS 15P (emphasis added).  On 19 October 2007, she was assigned to the 6th Squadron, 6th Cavalry Regiment, 10th Mountain Division, Fort Drum, NY.

5.  A DA Form 4856 (Developmental Counseling Form), dated 30 October 2007, shows the applicant was counseled by her noncommissioned officer in charge (NCOIC) on her performance and professional responsibilities as a Soldier, the expectations of her chain of command, and the upcoming areas of special emphasis.  On 30 October 2007, she signed the counseling form and circled the block on the form to indicate she agreed with the counseling.

6.  Her records contain a DA Form 3349 (Physical Profile), dated 6 November 2007, wherein it shows she was given a temporary profile on this date due to pregnancy with an estimated due date of 31 March 2008.

7.  She was also counseled by her NCOIC, in part, as follows:

	a.  On 20 November 2007, that her work performance had been above standards the past month and she had shown a knack for taking charge and doing the right thing.  Although she was unable to take the Army Physical Fitness Test (APFT) due to pregnancy, she was enrolled in the Division Pregnancy Physical Training (PT) Program and it was her responsibility to ensure she was there prior to 0700 each day.  She was going to be a single mother and would need a Family Care Plan; they had talked about it and she needed to let them know if she would be able to put together a plan.  On 20 November 2007, she signed the form and circled the block on the form to indicate she agreed with the counseling.

	b.  On 19 December 2007, that her work performance had been outstanding the past month and the long hours she work contributed in assisting the office get the highest mark of the last three inspections.  She failed to notify SGT S____ that she would not be at PT when the first sergeant (1SG) told her to.  She needed to ensure that she did so and she would be subject to Uniform Code of Military Justice (UCMJ) action the next time she missed PT.  She had notified him that she would not be able to complete a Family Care Plan and she would seek separation action.  She was still a Soldier and needed to continue to do her job.  On 19 December 2007, she signed the form and circled the block on the form to indicate she agreed with the counseling.

8.  On 19 December 2007, her immediate commander conducted the required pregnancy counseling and informed her of her entitlements and rights.  She was informed, in part, that:

	a.  She could request separation or elect to remain on active duty.  If she remained on active duty, she would receive treatment in a military facility or a civilian facility if military medical care was not available.  If she requested separation, she was authorized treatment only in a military facility.

	b.  If her performance or conduct warranted separation for unsatisfactory performance, or if parenthood interfered with her duty performance, she may be involuntarily separated even though she was pregnant.

	c.  She must have an approved family care plan on file stating actions to be taken in the event she was assigned to an area where dependents were not authorized or if she was absent from her home on military duty.  Failure to develop an approved family care plan would result in a bar to reenlistment.

9.  On 19 December 2007, she signed the form, acknowledged that she had been counseled by her immediate commander, that she understood her entitlements and responsibilities, and that during the counseling session there was no coercion on the part of her commander to influence her decision.  She checked the block of the form to indicate she elected separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 8, by reason on pregnancy and she desired to stay on active duty until 27 February 2008. 

10.  The applicant provides an SF 600, dated 19 December 2007, wherein it shows she was seen on that date at the Obstetrics Clinic, Guthrie Army Health Clinic (GAHC) for pregnancy follow-up.  The examining physician stated the applicant stated her pregnancy was conceived during a sexual assault by a stranger.  However, she declined to seek behavior heath follow-up as she was trying to get a chapter out of the Army due to her pregnancy and thought it might delay the process.  She stated she was "doing okay" with processing the trauma of the reported rape and would seek psychological follow-up once she was out of the Army. 

11.  On 3 January 2008, she submitted a DA Form 4187 (Personnel Action) requesting voluntary separation for pregnancy on 27 February 2008.  She acknowledged the separation date would not be later than 30 days before the expected date of delivery.  On the same date, her immediate commander recommended approval of the separation action.

12.  The applicant provides her ERB, dated 10 January 2008, wherein it shows she was a promotable SPC and had 380 promotion points at that time.  

13.  On 15 January 2008, the separation authority approved her request for separation due to pregnancy with a separation date of 17 February 2008 and directed she be honorably released from active duty.

14.  She also provides an SF 600 dated:

	a.  14 February 2008, wherein it shows she was seen on that date at the Obstetrics Clinic, GAHC, for follow-up and a complaint of bleeding and a migraine headache.  The examining physician noted she stated she had the usual pelvic pregnancy pains and denied having depression.  He further noted that she had no complaints that day, it was a routine visit, she had no recent onset of headache, no bleeding, no labor pains, no back pain, and had no dizziness.

	b.  13 March 2008, wherein it shows she was seen on that date at the Chiropractic Clinic, GAHC, for a complaint of low back pain radiating to the left buttock.  The examining physician noted she stated the pain started the past few weeks and had worsened since the delivery of her child.  She had further stated she was on profile for the birth of child and had back pain on and off for years.  The examining physician further noted her lower back exhibited pain tenderness upon palpitation and she had normal movement of all extremities.  She was given 5 minutes of therapy and hot packs for her lumbar spine.

	c.  7 April 2008, wherein it shows on that date she had a telephone consult with the Family Practice Clinic, GAHC, for a complaint of having very high anxiety.  The consulting physician noted the applicant stated she had been on medication for a few weeks to help her sleep but her chief complaint was she hadn't slept in 24 hours and had little sleep 2 days prior to that.  The consulting physician further noted he discussed her case with Lieutenant Colonel (LTC) W______ who had been treating her for symptoms of depression.  She (the applicant) was advised not to operate any machinery or drive, and to call for her 6-week follow-up appointment with the Obstetrics Clinic, and bring the appointment information to her behavioral health appointment.

15.  Her record contains a memorandum, dated 8 April 2008, wherein her immediate commander stated the applicant had an approved separation date of 17 February 2008 under the provisions of Army Regulation 635-200, chapter 8 but she failed to outprocess because on 17 February 2008 she decided she wanted to be retained.  Her request was denied by the approving authority.  She gave birth on 21 February 2008 and her separation was postponed due to her 6 weeks convalescent leave.  She returned to duty on 8 April 2008 and he (her immediate commander) recommended she be honorably separated for pregnancy/childbirth.

16.  She provides an SF 600, dated 24 April 2008, wherein it shows she was seen on that date at the Family Practice Clinic, GAHC, for a complaint of having a bad migraine headache and almost passing out at PT that morning.  The examining physician noted she was informed if she felt that bad she should go to the emergency room.  She requested to see LTC W_____ that day.  He consulted with LTC W_____ and she (the applicant) was advised to go on sick call that day.  

17.  On 28 April 2008, the separation authority approved her separation by reason of pregnancy/childbirth with a separation date of 12 May 2008, directed she be honorably released from active duty, and transferred to the Individual Ready Reserve (IRR).

18.  On 8 May 2008, she enlisted in the NYARNG for a period of 5 years, 8 months, and 13 days in the rank of SPC [effective 13 May 2008].

19.  She was honorably released from active duty on 12 May 2008 and she was transferred to the NYARNG, 27th Infantry Brigade Combat Team (BCT), Syracuse, NY.  She completed 7 months and 12 days of creditable active service during this period of service.

20.  The DD Form 214 she was issued for this period of service shows the following entries in:

* item 4a (Grade, Rate or Rank) - SPC
* item 4b (Pay Grade) - E-4
* item 18 (Remarks) - Member has not completed first full term of service
* Item 28 (Narrative Reason for Separation) - Pregnancy or childbirth

21.  There is no evidence in her record, and she did not provide any evidence, that shows while serving on active duty she was treated for, or diagnosed with, any mental/medical condition/disorder that permanently prevented her from performing her assigned duties, was found to be unfitting, or required referral to an MEB or physical evaluation board (PEB) (emphasis added).  There is no evidence that shows while serving on active duty she ever received a permanent profile of "3" that would require referral to an MEB/PEB. 



22.  There is no evidence in her available records that shows she was ever promoted to the grade/rank of SGT while serving in the RA.

23.  On 12 May 2009, she was honorably separated from the NYARNG in the rank of SPC and transferred to the USAR Control Group (Annual Training).  She completed 1 year of Reserve service during this period of service.  The NGB Form 22 she was issued for this period of service shows she was not available for signature, the NGB Form 22 was mailed to her last known address, and her Reenlistment Eligibility (RE) code was 1 - fully eligible to reenlist.

24.  Orders C-06-008969, dated 16 June 2010, issued by the U.S. Army Human Resources Command (HRC), voluntarily released her from the USAR Control Group (Reinforcement) and assigned her to the USAR Troop Program Unit (TPU), 2nd Battalion, 313th Regiment, Fort Drum, NY.  These orders show her rank as SPC.

25.  On 9 March 2011, she was issued a permanent profile by the Surgeon's Office, 72nd Brigade, USAR, for back pain, headaches, and post-traumatic stress disorder (PTSD).  She was given a "3" in the PULHES blocks of physical capacity/stamina (P), upper extremities (U), lower extremities (L), and psychiatric (S).  This form shows she did not meet retention standards under Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and stated she was currently receiving 50% VA disability, she had worsening psychological conditions, and to refer her to a non-duty related (NDR) PEB.  

26.  Her available record is void of an NDR PEB and it is unclear if the applicant requested an NDR PEB. 

27.  The applicant provides pages 1 and 2 of a VA Rating Decision Review, dated 15 September 2011, wherein it shows:

	a.  Her evaluation of PTSD with bipolar disorder, currently rated at 30% disabling was increased to 70% effective 14 January 2011.  Her service-connected condition of migraine headaches was granted with an evaluation of 10% disabling effective 25 May 2010.  Entitlement to individual unemployability was granted effective 14 January 2011.

	b.  She submitted a claim for service-connected PTSD in May 2010 and a VA Rating Decision in January 2011 granted it with a 30% rating.  Private treatment records shows she was hospitalized from 6 to 10 January 2011 and her psychiatrist opined she was not able to work at that time.  She was last seen by the psychiatrist on 11 August 2011 and her doctor continued to put her out of work and stated she should not be traveling due to auditory and visual hallucinations.  She was on psychotropic medications and the applicant stated the medication and therapy was helpful.  

28.  The specific facts and circumstances surrounding her discharge processing from the USAR are not available for review with this case.  However, her records contain Orders 11-297-00080, dated 24 October 2011, issued by Headquarters (HQ), 99th Regional Support Command (RSC), Fort Dix, NJ, honorably discharging her from the USAR, effective 23 November 2011, by reason of being medically disqualified.  These orders show her rank as SPC.

29.  There is no evidence in her available records that shows she was ever promoted to the grade/rank of SGT while serving in the ARNG or USAR.

30.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army and established  standardized policy for the preparation of the DD Form 214.  In pertinent part, it stated the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In items 4a and 4b, of the DD Form 214 enter the active duty rank and pay grade held at the time of separation.

31.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states:

	a.  MEB/PEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.  

	b.  Under the laws governing the Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.




32.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states Reserve component (RC) Soldiers with NDR medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  The process is designed to give the Soldier with NDR impairments the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits.

33.  Department of Defense Instruction 1332.38, definition E-2.1.20, defines NDR impairments as "impairment of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation."  Members with NDR impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  

DISCUSSION AND CONCLUSIONS:

1.  The DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The applicant enlisted in the RA on 1 October 2007 for a period of 3 years.  She was released from active duty on 12 May 2008 after serving only 7 months and 13 days.  As she had not completed the 3 years of service she enlisted for, item 18 of her DD Form 214 for the period ending 12 May 2008 correctly shows she had not completed her first full term of service.

2.  In addition, the evidence of record confirms the highest rank/grade she held while serving on active duty (or in the RC) was SP4/E-4.  Promotions to SGT/E-5 are not automatic.  Although she may have appeared before an E-5 promotion board while on active duty or may have been automatically integrated on the promotion list, there is no evidence in her available record and she has not provided any evidence that shows she was ever promoted to SGT/E-5.  The DD Form 214 she was issued for the period ending 12 May 2008 correctly shows her rank/grade as SP4/E-4; the rank/grade she held at the time of her separation.

3.  It is unclear when the applicant was initially diagnosed with unfitting mental/medical conditions/disorders; however, when she was released from the RA on 12 May 2008 for pregnancy/childbirth she was fit for Reserve service, as at that time she had already enlisted in the NYARNG.  Her NGB Form 22 for the period ending 12 May 2009 shows her RE code as 1 indicating she was fully eligible to reenlist at the time of her separation from the NYARNG.  In addition, it is also presumed she did not have unfitting mental/medical conditions/disorders on 16 June 2010, when she voluntarily transferred from the IRR to a USAR TPU. 
4.  Her records are void of the specific facts and circumstances surrounding her discharge processing from the USAR.  However, her available records show she received a permanent profile of 3 on 9 March 2011 and was referred to an NDR PEB.  It is unclear if an NDR PEB had been conducted; however, an NDR PEB would only have determined her fitness to remain in the USAR.  She provided evidence that shows she was rated as 70% disabled by the VA effective 14 January 2011 for PTSD and bipolar disorder and was unable to work from January to August 2011 as she was unable to travel due to auditory and visual hallucinations.  

5.  In the absence of evidence to the contrary, it is presumed that her separation from the USAR was accomplished in compliance with applicable regulations and Orders 11-297-00080 discharging her from the USAR, effective 23 November 2011, by reason of being medically disqualified were appropriate considering the available facts of the case.  In addition, these orders correctly show her rank/ grade as SPC/E-4 the rank she held at the time.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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 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)                                         AR20140004803



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ABCMR Record of Proceedings (cont)                                         AR20140004803



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