IN THE CASE OF:
BOARD DATE: 7 April 2015
DOCKET NUMBER: AR20140014089
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 item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was retired for permanent disability.
2. The applicant states:
* on 21 July 2010 he was placed on the Retired List due to combat related injuries rated at 40 percent
* his disability rating was based on pending treatment and he now has a 90 percent disability rating
* his DD Form 214 should reflect that he is medically retired due to a physical disability
* his DD Form 214 needs to be corrected for his educational benefits and possible employment opportunities
* an administrative error was the cause of the error on his DD Form 214
3. The applicant provides:
* DD Form 214
* orders
* a letter from the Department of Veterans Affairs (VA)
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 prior enlisted service in the Regular and a break in service, the applicant enlisted in the Kansas Army National Guard (KSARNG) on 16 August 2004.
3. Orders 222-324, issued by Land Component, Joint Forces Headquarters, KS, Topeka KS, dated 10 August 2005 show he was ordered to active duty effective 1 September 2005.
4. Orders 311-009, issued by Headquarters, Fort McCoy, Fort McCoy, WI, dated 7 November 2006 show he was released from active duty, not by reason of physical disability effective 4 December 2006.
5. On 4 December 2006, he was released from active duty and transferred to the KSARNG. The DD Form 214 issued at time showed he was released from active duty due to completion of required active service.
6. On 20 May 2010, a Physical Evaluation Board (PEB) convened to determine his fitness for retention for continued Reserve service. The PEB found him physically unfit for military service with a combined service-connected disability rating of 40 percent. The PEB recommended that he be retired with a permanent disability.
7. Orders D167-20, issued by U.S. Army Physical Disability Agency, Washington, DC, dated 16 June 2010 shows he was placed on the Retired List effective 21 July 2010 because of physical disability.
8. He provides a letter from the VA, dated 4 August 2014, stating he has been awarded a 90 percent service-connected disability rating.
9. 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. It established standardized policy for the preparation of the DD Form 214. It stated the DD Form 214 is a synopsis of the Soldiers 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted. His supporting evidence has been considered.
2. The evidence shows he was placed on the Retired List on 21 July 2010; however, he was released from active duty on 4 December 2006. According to the applicable regulation, the DD Form 214 is a synopsis of the Soldiers most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.
3. The fact that he was retired due to a physical disability 3 years after he was released from active duty is not justification for changing the reason and authority for separation shown on his DD Form 214 for the period ending 4 December 2006.
4. In view of the foregoing, there is no basis for granting his requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ___X_____ ___X_____ DENY APPLICATION
0BOARD 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) AR20140014089
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