IN THE CASE OF:	  

		BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150003154 


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 the narrative reason for his separation on 16 August 2009 from "completion of required active service" to "disability." 

2.  The applicant states:

* He was released from active duty in August 2009 and returned to the U.S. Army Reserve (USAR) due to being physically unfit to perform the duties he was activated to perform
* He was an activated Reservist from 2008 to 2009 and he had three 
DD Forms 214 (Certificate of Release or Discharge from Active Duty), spanning 30 years of USAR and active duty service
* The last time he was activated was in 2008/2009; he should not have been mobilized because of his 40 percent disability rating by the Department of Veterans Affairs (VA)
* He had to prove to his command that he could not perform the job he was activated to perform 
* He needed to get examined by a Regular Army doctor and what happened was that he was relieved after 79 days of the 365-day order 
* The command requested a replacement to complete the mission because he was unable to complete it; he did not complete the mission as his 
DD Form 214 states
* He is not looking to retire from active duty by reason of disability; he only wants item 28 (Narrative Reason for Separation) of his DD Form 214 to state his active duty orders were cut short due to disability, not due to mission completion 
3.  The applicant provides:

* Letter, dated July 2009, from the Adjutant General, Fort Leonard Wood, MO to the applicant's Member of Congress
* Request for Early Release from Active Duty
* DA Form 3349 (Physical Profile)
* VA rating decisions (2006, 2009, and 2010)
* Mobilization orders
* DD Form 214
* Congressional correspondence

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's records show he was born in April 1950.  His records show he initially served in the Regular Army from 18 August 1969 to 28 February 1972 and he held military occupational specialty (MOS) 82C (Artillery Surveyor). 

3.  He enlisted in the USAR on 16 February 1982.  He served through multiple reenlistments in a variety of assignments as a construction engineer specialist/supervisor and he attained the rank/grade of sergeant first class (SFC)/E-7. 

4.  On 2 February 2001, the USAR Command, St. Louis, MO issued him a Notification of Eligibility for Retired pay at Age 60 (20-Year Letter).

5.  He was ordered to active duty in support of Operation Noble Eagle on 17 October 2001.  He was honorably released from active duty on 17 April 2002 and he was transferred to his Reserve unit.

6.  Between April 2008 and December 2008, he was assigned as an instructor/writer to the 1st Battalion, 1st Brigade (Engineer), 80th Training Command, Windsor, NY.

7.  Between December 2008 and May 2009, he was also assigned as an instructor/writer to TAS Training Center (TTC), 80th Training Command, Fort Dix, NJ. 

8.  On 12 March 2009, Headquarters (HQ), 80th Training Command, Richmond, VA, published Orders 09-071-00025 ordering him to active duty as a member of his Reserve unit for 365 days in support of Operation Enduring Freedom beginning on or about 1 June 2009.  He entered active duty on 15 October 2008. He was assigned to 1st Battalion, 95th Regiment, Fort Leonard Wood, MO. 

9.  On 18 June 2009, by memorandum to the U.S. Army Human Resources Command (HRC), the applicant's senior commander at HQ, 1st Brigade (Engineer), 102nd Division requested the applicant's early release from active duty, effective 1 June 2009, due to the applicant's inability to maintain his certified instructor status.  He held (at the time) a PULHES of "3-3-1-1-2-1" and he had not been to an MOS/Medical Reclassification Board (MMRB).  Because he had a permanent (P-3) profile, he was not allowed by the U.S. Army Training and Doctrine Command (TRADOC) to instruct or course-manage any courses.  He should no longer be mobilized and his unit will require a replacement.

10.  On 25 June 2009, by letter to his Member of Congress, an official at Fort Leonard Wood, MO stated: 

	a.  The applicant had experienced medical problems prior to mobilization but his problems resulted in only a temporary physical profile.  That profile expired on 5 December 2008.  When the medical problems continued, further evaluation resulted in his receipt of a permanent profile.  He received a physical profile and his mobilization orders were published on the same date (12 March 2009).  When he received his permanent profile, he was training on active duty at Fort Dix, NJ, prior to beginning actual mobilization.

	b.  After he arrived at Fort Leonard Wood, MO, it was determined he could not perform the duties required for mobilization and a memorandum was prepared to request his Reserve command release him from active duty.  He indicated he planned to retire through the USAR after his release from active duty.  The installation was working on his release from active duty and orders were to be published soon. 
11.  On 15 July 2009, Headquarters, 80th Training Command, Richmond, VA published Orders 09-196-00006 amending his mobilization orders to read ordered to active duty as a member of his Reserve unit for 79 days.

12.  On 24 July 2009, HQ, U.S. Army Maneuver Center, Fort Leonard Wood, MO published Orders 205-1326 honorably releasing him from active duty, not by reason of physical disability, and assigning him to his Reserve unit effective 16 August 2009.

13.  He was honorably released from active duty on 16 August 2009.  His 
DD Form 214 shows he was honorably released from active duty in accordance with chapter 4 of Army Regulation (AR) 635-200 (Personnel Separations Active Duty Enlisted Administrative Separations) by reason of having completed his required active service.  His DD Form 214 shows he completed 10 months and 2 days of net active service during this period.  It also shows in:

* Item 25 (Separation Authority), AR 635-200, chapter 4
* Item 26 (Separation Code), MBK
* Item 28 (narrative Reason for Separation), Completion of Required Active Service
* Item 18 (Remarks), the entries "Individual completed period for which ordered to active duty for purpose of post service benefits and entitlements" and "Ordered to active duty in support of Operation Enduring Freedom in accordance with Title 10, U.S. Code, section 12302"

14.  On 20 May 2010, HQ, USAR Command, Fort McPherson, GA published orders releasing him from the USAR and transferring him to the Retired Reserve effective 13 April 2010 by reason of having reached maximum age. 

15.  On 6 April 2010, HRC published orders retiring him and placing him on the Retired List in his retired grade of SFC effective 14 April 2010, his 60th birthday. 

16.  The applicant provides his 12 March 2009 temporary physical profile, July 2009 permanent profile, and his 2006, 2009, and 2010 VA rating decisions. 

17.  AR 635-200 provides for the separation of enlisted personnel.  Chapter 4 states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.  A Soldier enlisted or ordered to active duty normally will be discharged or released from active duty on the date he/she completes the period for which enlisted or ordered to active duty.  Personnel released from active duty and transferred to the USAR upon completion of the term of service for which ordered into active Federal service, or released to their Reserve units, are separated under chapter 4 of this regulation.
18.  AR 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time stated the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

	a.  The DD Form 214 is prepared for Reserve component (RC) Soldiers completing 90 days or more of continuous active duty for training (ADT), Full-Time National Guard Duty (FTNGD), active duty for special work (ADSW), temporary tours of active duty (TTAD), or Active Guard Reserve (AGR) service; RC Soldiers separated for cause or physical disability regardless of the length of time served on active duty; and USAR Soldiers mobilized under sections 1230l(a), 12302, or 12304, title 10, U.S. Code, and Army National Guard Soldiers called into Federal service under chapter 15, or section 12406, title 10, U.S. Code, regardless of length of mobilization, when transitioned from active duty. 

	b.  A Soldier who reports to a mobilization station and is found unqualified for active duty will be excluded from this provision.  He or she will only receive a 
DD Form 220 (Active Duty Report). 

19.  Chapter 2 of AR 635-5 states that the information on all copies of the form must be legible.  Item 18 is used for Department of the Army mandatory requirements, when a separate block is not available, and as a continuation for selected entries. 

	a.  One of the mandatory entries is "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE."  This information assists the State in determining eligibility for unemployment compensation entitlement.  If the narrative reason for separation on the DD Form 214 is "completion of required active service," then enter "has."

	b.  For a Reserve Soldier ordered to active duty and deployed to a foreign country, enter the following three statements in succession: (1) "ORDERED TO ACTIVE DUTY IN SUPPORT OF (OPERATION NAME) PER 10 USC (applicable section)"; "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD -YYYYMMDD)''; and "SOLDIER COMPLETED PERIOD FOR WHICH ORDERED TO ACTIVE DUTY FOR PURPOSE OF POSTSERVICE BENEFITS AND ENTITLEMENTS."



	c.  Item 23 (Type of Separation), enter the appropriate term as follows: Release from active duty; Discharge; Retirement; Release from active duty and order to active duty in another status; Release from Active Duty for Training (ADT); Release from custody and control of the Army; Release from ADT and discharge from the Reserve of the Army and return to the ARNG. 

	d.  Item 25 (Separation Authority), is obtained from regulatory or directives authorizing the separation.

	e.  Item 26 (Separation Code), is obtained from AR 635–5–1 (Separation Program Designator), which provides the corresponding separation program designator code for the regulatory authority and reason for separation.  This could differ for an RC Soldier ordered to active duty to support a contingency operation –specific guidance will be provided at the announcement of the contingency operation.

	f.  Item 28 (Narrative Reason for Separation), this is based on regulatory or other authority and can be checked against the cross reference in AR 635–5–1.  For Soldiers ordered to ADT, AGR, TTAD, FTNGD, or ADSW on self-terminating orders, enter "Completion of Period of ADT, AGR, TTAD, FTNGD, OR ADSW" as appropriate. 

20.  AR 635-5-1 states Separation Program Designator (SPD) codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty.  The SPD code "MBK" is the correct code for Soldiers voluntarily released from active duty for completion of required active service under the provisions of AR 635-200, chapter 4 when eligible to reenlist and are transferred to the RC to complete their military service obligation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to active duty on 15 October 2008 in support of Operation Enduring Freedom.  He had experienced medical problems prior to mobilization but his problems resulted in only a temporary physical profile.  That profile expired on 5 December 2008.  When the medical problems continued, further evaluation resulted in his receipt of a permanent profile.  He received a physical profile and his mobilization orders were published on the same date.

2.  When he received his permanent profile, his chain of command determined he was unable to maintain his certified instructor status.  He held a PULHES of "3-3-1-1-2-1" and he had not been to an MMRB.  Because he had a permanent (P-3) profile, he was not allowed by TRADOC to instruct or course-manage any courses.
3.  He was not released from active duty due to unfitness; he was released from active duty due to his inability to maintain his certified instructor status.  In other words, he was never found unfit for duty.  He was released from active duty in August 2009 and continued his participation in the USAR through April 2010 and the only reason he was transferred to the Retired Reserve in April 2010 was reaching maximum age. 

4.  He was honorably released from active duty on 16 August 2009: 

	a.  In accordance with AR 635-200, personnel released from active duty and transferred to the USAR upon completion of the term of service for which ordered into active Federal service, or released to the Reserve, are separated under chapter 4 of this regulation.  This is correctly shown in item 25 of his DD Form 214. 

	b.  The SPD code of "MBK" is the correct code for Soldiers voluntarily released from active duty for completion of required active service under the provisions of AR 635-200, chapter 4 when eligible to reenlist and are transferred to the RC to complete their military service obligation.  This is also correctly listed in item 26 of his DD Form 214. 

	c.  Because he was released from active duty under chapter 4 of AR 635-200 and assigned the SPD Code MBK under AR 635-5-1, and because he was not separated for cause, the entry "completion of required active service" is the correct entry in his case and is correctly shown in item 28 of his DD Form 214. 

	d.  Finally, for a Reserve Soldier ordered to active duty and deployed to a foreign country, three successive statements are required to be entered in item 18 of the DD Form 214.  In his case, because he did not deploy, only two of the three statements are entered and they are correctly shown as "Individual completed period for which ordered to active duty for purpose of post service benefits and entitlements" and "Ordered to active duty in support of Operation Enduring Freedom in accordance with Title 10, U.S. Code, section 12302."

5.  The applicant's DD Form 214 correctly listed his narrative reason for separation and the applicant does not provide sufficient evidence to show this entry is in error or unjust, and as such, there is insufficient evidence to support granting him 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)                                         AR20150003154





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ABCMR Record of Proceedings (cont)                                         AR20150003154



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