IN THE CASE OF:	  

		BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20140016539 


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 the separation date shown on his DD Form 214 (Report of Separation from Active Duty) to show he was retained on active duty through    31 August 1978; and
   
   b.  correction of his DD Form 214 or DD Form 256A (Honorable Discharge Certificate) to show his release from active duty (REFRAD) and discharge resulted from service-connected disabilities.

2.  The applicant states, in effect:

	a.  His DD Form 214 shows he served on active duty from 13 January through 15 April 1978; however, he was retained on active duty unit 31 August 1978 due to his continued medical care and treatment for a service-connected ear injury and traumatic brain injury.  He was REFRAD at Fort Monmouth, New Jersey on 31 August 1978, after his visit to Walter Reed Army Medical Center and his second surgery at Patterson Army Hospital.

	b.  On 16 March 1978, he was standing in front of his wall locker preparing for an inspection when a fellow Soldier, who was cleaning the tops of the lockers fell.  While saving the falling Soldier, a Q-tip was jammed into his ear canal and drum. His ear drum was severely damaged, the nerve was destroyed, and it caused irreparable damage to his brain.

	c.  Since the fellow Soldier he saved did not come forward to provide a detailed account of how the accident occurred, the investigators speculated about what really happened.  He was unconscious for 2-3 days and he had two major surgeries but his conditions were irreparable.  He was kept on active duty until August of 1978, then REFRAD at Fort Monmouth, New Jersey.  He sacrificed his military career to save his fellow Soldier; he did it because it was the right thing to do.
	
   d.  He tried to get his record from Fort Monmouth, New Jersey; however, it has been closed since 2010.  He is sending all of the evidence he has but the Board has more power than he has to access other agencies, find the truth, and correct his separation date on his DD Form 214.  He was on active duty from 
13 January through 31 August of 1978, and he was returned to the U.S. Army Reserve (USAR) afterwards.  

	e.  Neither his REFRAD DD Form 214 nor his Honorable Discharge Certificate from the USAR acknowledge his service-connected medical disabilities or the reason he was discharged.  The Department of Veterans Affairs (VA) Home Loan section has denied issuing him a Certificate of Eligibility, since neither his DD Form 214 nor his Honorable Discharge Certificate mention his service-connected medical disabilities or the reason he was discharged.  With his service-connected ear and traumatic brain injuries, he cannot afford to lose his home.    

3.  The applicant provides:

* a copy of his DD Form 214
* Orders 12-14, issued by Headquarters, First United States Army, Fort George G. Meade, Maryland on 19 January 1982
* a letter from the National Personnel Records Center (NPRC), St. Louis, Missouri, dated 10 March 2004, including, as attachments, medical clinical records, physical examination records, nursing notes, doctor's progress notes, operation reports, and clinical record cover sheets
* a letter from the NPRC, dated 10 September 2014, including, as attachments, enlistment and service records, reassignment orders, and discharge memoranda, from the Department of Justice, USAR Personnel Center in St. Louis, Missouri, or the 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.  The applicant enlisted in the USAR on 22 December 1977.  He entered active duty for training at Fort Leonard Wood, Missouri, for the purpose of completing his initial entry training, on 13 January 1978.  After completing his initial entry training, he was awarded military occupational specialty (MOS) 62F (Lifting and Loading Equipment Operator).

3.  His record contains:

   a.  a DA Form 2173 (Statement of Medical Examination and Duty Status), which shows he suffered a perforated right ear injury on 16 March 1978;
   
	b.  DA Forms 4187 (Personnel Action), which shows his duty status changed from "present for duty" to "hospital" on 16 March 1978, and further changed from "hospital" to "present for duty" on 24 March 1978; and
   
   c.  an Affidavit For A Member Disabled From Disease or Injury Incurred In Line of Duty With The Army of The United States, which shows he swore the following oath before a duly appointed commissioned officer:
   
I, [Applicant], have been fully advised by the undersigned officer of the rights and advantages that may accrue to me by voluntarily remaining on ADT for the purpose of completing Hospital care and, if eligible, subsequent separation or retirement for physical disability as determined under the provisions of Chapter 61, Title 10, USC.

Wherefore in consideration of the above, I do desire to remain beyond the scheduled date of my relief from (active duty training).

4.  His record contains a DD Form 214 that shows he was honorably REFRAD at Fort Leonard Wood, Missouri on 15 April 1978, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph   5-15 (Reserve Component Personnel Ordered to Initial Active Duty for Training under the Reserve Enlistment Program).  His DD Form 214 does not address his injury or period of hospitalization.
5.  His record is void of documentation that definitively shows he remained on active duty beyond the separation date cited on his DD Form 214.  There is evidence he underwent surgery in June of 1978 and continued to receive medical care following his documented REFRAD date; however, it is unclear if he remained on continuous active duty or if he was recalled to active duty for the purpose of that medical care.

6.  His record lacks documentation that shows:

* he was continued on active duty during the period 16 April 1978 through 31 August 1978
* his medical injuries were of such severity as to warrant his entry into the Army Physical Disability Evaluation System (PDES)

7.  His record contains a memorandum from Patterson Army Hospital, Fort Monmouth, New Jersey, dated 19 October 1978, subject: Continuation of Pay and Allowances for USAR/USARNG [U.S. Army National Guard].  This memorandum establishes that the applicant was, as of the date of the memorandum, under the care of Patterson Army Hospital (Fort Monmouth, New Jersey) and he was found by proper authority to have incurred a personal injury on 16 March 1978 at Fort Leonard Wood, Missouri.  As a result, he was entitled to continuous pay and allowances until a date to be determined. 

8.  His records contain documentation, initiated in or around September 1981, which shows he was found medically unfit for further USAR service.

9.  Orders 12-14, issued by issued by Headquarters, First United States Army, Fort George G. Meade, Maryland on 19 January 1982, honorably discharged the applicant from the USAR effective19 January 1982.  This discharge order does not cite an authority.

10.  The applicant provides medical documentation that shows he was hospitalized at Patterson Army Hospital during the period 19 June through        18 July 1978, during which time he underwent a second operation on his right ear on or about 20 June 1978 [the first occurring on or about 18 March 1978].  

11.  Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the enlisted qualification record, officer qualification record, personnel qualification record, officer record brief, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, military personnel records jacket, or any other document authorized for filing in the official military personnel file.

	b.  Section II (Preparation of DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It shows for:

      (1)  item 9d (Effective Date), the preparer will enter the effective date of discharge as shown on the separating Soldier's separation orders, using 6-digit numerals to represent the year, month, and day of separation;
      
      (2)  item 27 (Remarks), the remarks section will be used for entries authorized by Headquarters, Department of the Army, for which a separate item is not available on the DD Form 214, and to complete entries too long for their respective blocks.  When completing a long entry, the item number being completed must precede the item 27 comment.

         (a)  For all personnel who have a period of service extended, except an officer of a Reserve component who entered on active duty to determine physical fitness, enter "Extension of service was at the request and for the convenience of the Government."

         (b)  When an enlisted person is retained in service beyond the expiration term of service (ETS) date, enter "Retained in service __ days for convenience of the Government per (authority for retention)."

         (c)  Extension of service, as covered by (a) above, is distinctive from retention in that extension of enlisted service is evidenced by a new service agreement for a specified period, while retention is continuing the member on the same period of service beyond his or her ETS date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and contentions were carefully considered.

2.  The evidence of record shows he entered active duty on 13 January 1978 and was released from active duty on 15 April 1978.  Within that timeframe, he was hospitalized for an injury to his ear; specifically, a perforated ear drum.  However, he was released from the hospital after 9 days and returned to duty, where he eventually completed his training requirements and was awarded an MOS prior to his REFRAD.
3.  There is no evidence that definitively shows the applicant was retained on continuous active duty for a period of time following his documented separation date of 15 April 1978.  

4.  The evidence suggests he desired to remain on active duty after 15 April 1978; however, the fact that he served on active duty at Fort Leonard Wood, Missouri and his follow-up medical care occurred at Fort Monmouth, New Jersey suggests he had a break in service of at least 1 day prior to the resumption of his treatment in the summer of 1978.

5.  Therefore, in view of all of the foregoing and barring the submission of pay documents that establish a continuous period of active service after the separation date cited on his DD Form 214, there is no basis for correcting the separation date that is currently recorded on his DD Form 214.

6.  The governing regulation in effect at the time did not require the annotation of medical conditions or service-connected disabilities on either the DD Form 214 or DD Form 256A.  

7.  Additionally, there is no evidence that his medical condition was considered unfitting at the time of his REFRAD; therefore, there was no basis for documenting that information on his DD Form 214.  

8.  The evidence shows he was honorably discharged from the USAR after being found unfit for further service; however, the governing regulation has no provisions for those circumstances on the Honorable Discharge Certificate. 

9.  Therefore, and in view of the foregoing, there is no basis for granting 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)                                         AR20110022370



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ABCMR Record of Proceedings (cont)                                         AR20140016539



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