IN THE CASE OF:	  

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150003165 


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) to change the narrative reason of her separation to allow her to reenter military service. 

2.  The applicant states, in effect:

   a.  She was discharged on the basis of being unfit to serve.  She had stress fractures which, with the right care, would have healed in no time.  She reported a sexual assault to her unit advocate and was soon after moved to the Warrior Transition Unit (WTU).

   b.  Subsequent to her discharge, she has run three half-marathons and incorporates Cross Fit training every day.  She is obviously mentally and physically fit to serve.  Her primary care provider and Department of Veterans Affairs therapist can attest to her physical and mental ability to serve.  

   c.  While in the service of her country she graduated from the U.S. Army Aviation Logistics School as the honor graduate.  The officers and noncommissioned officers of her unit will attest she was a loyal and outstanding Soldier.  She has graduated with honors from Troy University with a Bachelor of Science degree in International Relations, and she has held a physically and mentally demanding position in an oncologist clinic single-handedly running both a physician dispensing pharmacy and medical records section.  She has also worked her way through pharmacy school graduating with honors from the University of Florida.
   d.  She believes the Army deserves hard working individuals who may have been passed by due to lack of care.  She believes she is an exemplary Soldier with an impeccable civilian record and wants to fulfill her military contract.   

3.  The applicant provides a copy of her DD Form 214.

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 Regular Army (RA) on 13 January 2009.  She completed training and she was awarded military occupational specialty (MOS)   15R (AH-64 Attack Helicopter Repairer).

3.  On 17 August 2010, an informal Physical Evaluation Board (PEB) convened.  The PEB found the applicant's conditions prevented her from performing the duties required of her grade and MOS and determined that she was physically unfit due to bipolar disorder with comorbid obsessive compulsive disorder and a right distal tibial grade 2-3 stress fracture.  She was rated under the VA Schedule for Rating Disabilities (VASRD), and granted a 60-percent disability rating.  The PEB recommended she receive a permanent disability retirement.

4.  On 26 August 2010, the applicant was counseled by a PEB Liaison Officer who explained her rights, the disability process, and the findings and recommendations of the PEB.  She elected to concur with the PEB's findings and recommendation and waived her right to a formal hearing of her case.

5.  On 28 November 2010, she was honorably released from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions which permitted her retirement for permanent physical disability. 

6.  The applicant's available records do not contain evidence and she did not provide evidence that she reported a sexual assault to her unit advocate and was soon after moved to the WTU.

7.  Her DD Form 214 shows in:

* item 23 (Type of Separation) – "Retirement"
* item 24 (Character of Service) – "Honorable"
* item 25 (Separation Authority) – "[Army Regulation] 635-40 [Physical
     Evaluation for Retention, Retirement, or Separation], [Paragraph] 4-24b         (1)"
* item 26 (Separation Code) – "SFJ"
* item 27 (Reentry (RE) Code) – "4"
* item 28 (Narrative Reason for Separation) – "Disability, Permanent" 
 
8.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of this office, grade, rank, or rating in such a way as to 
reasonably fulfill the purposes of his or her employment on active duty.  Paragraph 4-24b(1) lists permanent retirement for physical disability.

9.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records 
or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes. RE–4 applies to persons separated from their last period of service with a non-waivable disqualification which makes them ineligible for enlistment.  Soldiers retired for permanent disability are assigned RE-4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of her DD Form 214 to change the narrative reason of her separation to allow her to reenter military service has been carefully examined.

2.  Her available records do not contain evidence and she did not provide evidence that she reported a sexual assault to her unit advocate and was soon after moved to the WTU or how evidence showing such a move impacted her retirement for permanent physical disability.
3.  The evidence shows an informal PEB found the applicant's conditions prevented her from performing the duties required of her grade and MOS and determined that she was physically unfit due to bipolar disorder with comorbid obsessive compulsive disorder and a right distal tibial grade 2-3 stress fracture.  She was rated under the VASRD and granted a 60-percent disability rating.  The PEB recommended she receive a permanent disability retirement.

4.  On 26 August 2010, the applicant was counseled by a PEB Liaison Officer who explained her rights, the disability process, and the findings and recommendations of the PEB.  She elected to concur with the PEB's findings and recommendation and waived her right to a formal hearing of her case.

5.  The applicant states she was an exemplary Soldier and civilian employee, and she contends that she should be able to return to active duty to complete her contract.  However, the applicant has provided no evidence which shows that her disability processing was in error or unjust or that her conditions were improperly evaluated.  The available evidence shows the assigned reason for separation and the associated RE code are correct.

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)                                         AR20150003165





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ABCMR Record of Proceedings (cont)                                         AR20150003165



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