IN THE CASE OF:    

		BOARD DATE:  13 November 2014	  

		DOCKET NUMBER:  AR20140006623 


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) ending on 11 March 2005 as follows: 

* change the entry date from 27 June 2004 to show he entered the service from July 2001 to April 2004, active Reserve, and April 2004 to March 2005, active duty 
* show attendance at the Ordnance Branch Military School from June 2004 to March 2005
* show a medical discharge for service-connected disabilities
* show his ribbons and medals for serving during Operation Iraqi Freedom
* change his rank/grade from second lieutenant (2LT)/O-1 to first lieutenant (1LT)/O-2

2.  The applicant states:

* the transition center was partly responsible for the administrative errors as the supervisor failed to check his subordinate's work
* the supervisor argued with the sergeant who prepared the DD Form 214 insisting the sergeant take the medals, awards, and the disability off
* although the doctor sent documents for permanent disability, the Line of Duty document description of service-connection did not help
* he became sick while attending the basic course; his attendance at the course was in direct preparation for deployment 
* he was going to be promoted once branch training was completed and he was a 2LT for almost 2 years; his promotion should have been automatic
3.  The applicant provides 

* July 2002 DD Form 2808 (Report of Medical Examination)
* November 2004 TRICARE authorization and Explanation of Benefits
* A hand-written statement
* DA Form 3349 (Physical Profile)
* Chronological Records of Medical Care
* DD Form 214, ending on 11 March 2005

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.  The applicant previously served as an enlisted sailor in the U.S. Navy (USN) from 26 June 1986 to 27 December 1990.  His USN Reserve Obligation Termination Date was 18 June 1994. 

3.  He was appointed as a Reserve commissioned officer of the Army in the rank of 2LT and executed an oath of office on 29 May 2003.  He was assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement). 

4.  On 11 July 2003, the USAR Command, St. Louis published orders transferring him from the USAR Control Group (Reinforcement) to the 926th Engineer Battalion, a troop program unit (TPU) of the USAR. 

5.  On 16 October 2003, the USAR Command, Fort McPherson, GA, published orders transferring him from his TPU, 926th Engineer Battalion, to the Trainees, Transients, Holdees, and Students (TTHS) Account of the 81st Regional Support Command.

6.  On 5 May 2004, the U.S. Army Human Resources Command (HRC), St., Louis, published Orders T-05-405462 ordering him to active duty for 265 days to attend the Ordnance Officer Basic Course at Aberdeen Proving Ground (APG), MD.

7.  He entered active duty on 27 June 2004.  He was assigned as a student to Company E, 16th Ordnance Battalion, APG, MD. 

8.  His records contain a DA Form 1059 (Service School Academic Evaluation Report) that shows he "Failed to Achieve Course Standards."  He was eliminated from the course due to academic deficiencies. 

9.  He was discharged from active duty on 11 March 2005 in accordance with paragraph 2-27 of Army Regulation 600-8-24 (Officer Transfers and Discharges) by reason of failing to complete a course of instruction.  His DD Form 214 shows in:

* Item 4a (Grade, Rate, or Rank) - 2LT
* Item 4b (Pay Grade) - O-1
* Item 9 (Command to Which Transferred) – Commander, 81st Regional Readiness Command 255 W Oxmoor Road, Birmingham, AL  35209
* Item 12a (Date Entered Active Duty This Period) - 2004-06-27
* Item 12b (Separation Date This Period) - 2005-03-11
* Item 12c (Net Active Service This Period) - 0000-08-15
* Item 12f (Foreign Service) - 0000-00-00
* Item 12h (Effective Date of Pay Grade) - 2003-05-29
* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) - None
* Item 14 (Military Education) - None
* Item 26 (Separation Code) - JHF

10.  On 13 April 2005, by letter, HRC notified him that his records were considered for promotion to 1LT by an administrative promotion board that convened on 31 March 2005, but he was not qualified for promotion. 

11.  On 4 January 2006, by letter, HRC notified him that his records were considered for promotion to 1LT by an administrative promotion board that convened on 1 December 2005, but he was not qualified for promotion.

12.  On 23 March 2006, by letter, HRC notified him that his records were considered for promotion to 1LT by an administrative promotion board that convened on 1 March 2006, but he was not qualified for promotion.



13.  The applicant provides: 

	a.  DD Form 2808, dated 10 July 2002.  It appears the applicant underwent an enlistment physical on that date.

	b.  A letter, dated 3 November 2004, from TRICARE authorizing the applicant specialty care at the Radiology Clinic. 

	c.  TRICARE Explanation of Benefits, dated 7 January 2005, for radiology service provided on 9 December 2004. 

	d.  DA Form 3349, issued by a profiling officer on 1 March 2005 but not signed by an approving authority.  It is shown as a permanent profile for Vertigo brought on by physical exertion.  No functional limitations and capabilities are assigned. 

	e.  A hand-written statement indicating the applicant had a second appointment with the audiology clinic.  

	f.  Multiple medical documents related to consults. 

14.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military service.  

	a.  Items 4a and 4b, enter active duty grade or rank and pay grade at time of separation, from the Enlisted/Officer Record Brief.

	b.  Item 12a, enter the beginning date of the continuous period of active service for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.

	c.  Item 12b, enter the Soldier’s transition date; this date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended for make-up of lost time, or retained on active duty for the convenience of the Government.

	d.  Item 12c, enter the amount of service this period, computed by subtracting item 12a from 12b, less lost time. 

	e.  Item 12f, enter total amount of foreign service completed during the period covered in block 12c.

	f.  Item 13, enter awards and decorations for all periods of service. 

	g.  Item 14, enter formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214.  Include title, length in weeks, and year completed.   

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits:

* the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training
* the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence

16.  This regulation further states in:

	a.  Chapter 3 the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  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.

	b.  Paragraph 3-1(d) that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (worldwide deployability) will not serve as the sole basis for a finding of unfitness.

	c.  Paragraph 3-2b that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank, or rating for a period of time because of a disability.

	d.  Paragraph 3-3b(1) that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.

17.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  

18.  Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  Paragraph 2-37 provides for the rules for processing involuntary release from active duty and termination of Reserve appointment of student officers and warrant officers attending branch orientation, familiarization courses, or Warrant Officer Basic Course.  A RC officer with less than 3 years commissioned service will be released from active duty and discharged from his or her USAR commission when the officer fails to meet the standards of service schools due to misconduct, moral or professional dereliction, academic or leadership deficiencies, or resigning from a course.  An officer attending any basic course while detailed from his or her branch for strength accounting only and who is attending a course of instruction at a different branch school as part of his or her basic course is included in this section.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 contains various errors that should be addressed and corrected. 

	a.  With respect to the entry date, he contends his DD Form 214 should be changed from 27 June 2004 to show he entered the service from July 2001 to April 2004, active Reserve, and April 2004 to March 2005, active duty.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active service.  He entered active duty on 27 June 2004.  There is no evidence he performed active duty service from July 2001 to April 2004.  In fact, he was not appointed until May 2003.

	b.  With respect to his attendance at the Ordnance Branch Military School from June 2004 to March 2005, while it is true he attended this course at APG the evidence of record shows he academically failed the course.  Only formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 are entered.  

	c.  With respect to his ribbons and medals for serving during Operation Iraqi Freedom, there is no evidence in the applicant's records and he provides none to show he served in support of Operation Iraqi Freedom.  He was a student at APG from June 2004 until his discharge in March 2005.  He did not deploy and his contention that "his attendance at the course was in direct preparation for deployment" does not entitle him to awards associated with Operation Iraqi Freedom. 

	d.  His contention that his rank should have been 1LT vice 2LT is rejected.  He entered active duty as a 2LT and he held the rank of 2LT upon his discharge from active duty.  There is no evidence he was qualified for promotion to 1LT.  As it appears he was discharged from active duty (and should not have been transferred to the 81st Regional Readiness Command) it appears he should never have been considered for promotion to 1LT by an administrative promotion board.  

	e.  His contention that he was should have been medically discharged is rejected: 

		(1)  It is unclear what condition or conditions the applicant believes rendered him unfit.  He erroneously assumes since he has several medical documents that show he underwent X-rays at the Radiology Clinic, then he must be disabled.  However, referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  

		(2)  There is no evidence to show he had a valid permanent physical profile that shows an unfitting condition or a diagnosis of a disabling condition that rendered him unable to perform the duties required of his military specialty or grade, or a medical examination that warranted his entry in the PDES.  The profile he provides is incomplete (not signed by an approving authority) and does not identify the source of his illness or assign any functional limitations. 

		(3)  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military service at the time of separation will be rated.  


		(4)  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.  Here, there is none. 

2.  After a comprehensive review of the applicant's records, there does not appear to be an error or an injustice in his case.  In view of the circumstances in this case, he is not entitled to any of the 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)                                         AR20140006623



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ABCMR Record of Proceedings (cont)                                         AR20140006623



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