IN THE CASE OF:	  

		BOARD DATE:	  22 October 2015

		DOCKET NUMBER:  AR20150004375 


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:

* the issuance of a separate DD Form 214 (Certificate of Release or Discharge from Active Duty) at the time he was temporarily retired and placed on the temporary disability retired list (TDRL) in 2010 
* the issuance of a separate DD Form 214 at the time he was permanently retired and placed on the permanent disability retired list (PDRL)
* award of a second campaign star to be worn with his Afghanistan Campaign Medal
* correction of his DD Form 214 to show award of the Bronze Star Medal and Meritorious Service Medal
* correction of his North Atlantic Treaty Organization (NATO) Medal to reflect Afghanistan
* consolidation of all awards on one DD Form 214 that reflects his PDRL status  

2.  The applicant states:

	a.  He was temporarily retired from the New Jersey (NJ) Army National Guard (NJARNG) on 21 September 2010 with a 70 percent disability rating for his combat-related injuries.  He did not receive a DD Form 214 when he was placed on the TDRL.  He only received a medical retirement order.  He spoke with Human Resources (HR) and the Retirement Services Office about receiving a DD Form 214 to no avail.  Then, when he completed his TDRL reevaluation, he was put on the PDRL at a rate of 80 percent on 7 February 2012.  At that time he also did not receive a DD Form 214, only retirement orders. 

	b.  This problem is affecting his eligibility for the Department of Veterans Affairs (VA) claims process.  The VA does not recognize his combat disabilities, particularly his traumatic brain injury (TBI).  When he returned from Afghanistan, he started getting care from the VA and he was service-connected at 100 percent.  He was rated 0 percent for TMJ (temporomandibular joint) and 100 percent for post-traumatic stress disorder (PTSD).  He was denied TBI and several other injuries.  He was also denied the Post 9/11 GI Bill because he did not have a DD Form 214 reflecting a 70 percent disability rating while on the TDRL and an 80 percent disability rating while on the PDRL.  This also affected his eligibility for award of the Purple Heart which was denied.  

3.  The applicant provides:

* DD Form 214 ending on 27 February 2007
* DD Form 215 (Correction to DD Form 214)
* Listing of Iraq/Afghanistan Campaign Medals and designated phases
* TDRL retirement orders
* PDRL retirement orders
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* 2005 mobilization orders
* 2007 release from active duty orders

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests a close review of the applicant's packet and consideration of consolidating his DD Form 214 and DD Form 215 into one DD Form 214 that reflects his latest PDRL retirement. 

2.  Counsel states: 

   a.  This action would allow the applicant to move forward with the issues that he continues to have with the VA since his retirement in 2010, correcting his Post 9/11 eligibility and Combat-Related Specialty Compensation (CRSC) reconsideration upon adjudication of pending VA claims that cannot be accomplished without an accurate DD Form 214.

	b.  She is an advocate of the Army Wounded Warrior Program (AW2) assisting seriously injured Army Soldiers and Veterans for the States of Delaware and New Jersey.  The applicant was part of a reach back initiative done through the Warrior Transition Command.  It is apparent that at the time of his retirement in September 2010, the medical evaluation board (MEB) process for ARNG Soldiers was not as prevalent and streamlined as it is today.  He brought to the attention of his command HR, and Retirement Services that he needed a 
DD Form 214 reflecting his medical retirement, to no avail.  As his Advocate, she feels that this has caused him undo quality of life issues and it has made his transition process much harder than it should have been.

3.  Counsel does not provide any additional evidence. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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.  Having had prior enlisted service in the U.S. Marine Corps and the NJARNG, the applicant was appointed as a warrant officer of the ARNG and executed an oath of office on 12 July 2000.

3.  He entered active duty for training (ADT) on 26 July 2000 and completed the Initial Entry Rotary Wing Course.  He was honorably released from ADT on 
10 August 2001.  He completed 3 months and 27 days of active service.  He was promoted to chief warrant officer two (CW2) on 25 July 2002.

4.  He again entered ADT on 17 November 2002 and completed the AH-64 Aviation Qualification Course.  He was honorably released from ADT on 13 March 2003. 

5.  He was ordered to active duty on 5 January 2006 and subsequently served in Afghanistan in support of Operation Enduring Freedom (OEF) from 24 February 2006 to 21 February 2007.  



6.  He was honorably released from active duty, by reason of completion of his required service, to the control of his State ARNG on 27 February 2007. His 
DD Form 214 for this period of service shows he was awarded or authorized the: 

* National Defense Service Medal (2nd Award)
* Afghanistan Campaign Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Armed Forces Reserve Medal with "M" Device
* NATO Medal
* Combat Action Badge
* Army Aviator Badge

7.  On 18 September 2007, the applicant was issued a DD Form 215 that added awards of the: 

* Bronze Star Medal with "V" Device
* Meritorious Service Medal
* Marine Corps Good Conduct Medal
* Army Reserve Components Achievement Medal (3rd Award)
* National Defense Service Medal (2nd Award)
* Afghanistan Campaign Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Armed Forces Reserve Medal with "M" Device
* NATO Medal
* Combat Action Badge
* overseas service bar
* Army Aviator Badge

8.  He was honorably discharged from the NJARNG on 31 July 2007 and his Federal recognition status was terminated.  He was issued a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that captured his warrant officer service in the NJARNG from July 2000 to July 2007.

9.  He was appointed as a Reserve commissioned officer of the NJARNG and executed an oath of office on 1 August 2007.  He was assigned to Headquarters and Headquarters Company, 1st Battalion, 150th Air Assault, Trenton, NJ.  In August 2008 he was transferred to Company C, 1st Battalion, 224th Supply and Service Aviation Battalion, Trenton.  He was assigned as a platoon leader. 
10.  On 3 August 2010, a PEB convened and found he was physically unfit to perform the duties in his grade and military specialty by reason of PTSD and TBI. The PEB rated him at 50 percent for PTSD and 40 percent for TBI.  The PEB noted: 

	a.  PTSD is a battle injury and was caused by an instrumentality of war. Soldier was deployed in support of OEF during 2006-2007.  During the deployment he was exposed to small arms fire, IEDs (improvised explosive devices), and RPGs (rocket propelled grenades).  He continues to feel guilt over the engagement of civilian vehicles by airstrikes he called in, which triggers dissociative reactions that remind him of Afghani children he saw injured.  He witnessed the deaths of Afghan soldiers he trained.  He continues to experience intrusive thoughts, disturbing dreams, irritability, and poor tolerance of others.  He was hospitalized three times for PTSD symptoms, and released from his civilian position as a police officer in January 2009 due to residuals of PTSD.  Condition is unfitting for this Soldier as he is unable to carry and fire his weapon, or perform as a pilot of combat aircraft.  Psychiatry states he has occupational and social impairment with reduced reliability and productivity due to irritability and poor tolerance of others, intrusive memories, significant insomnia, disturbing dreams, emotionally numb.  He has mood swings, decreased interest in activities, and hypervigilance, and he is rated for reduced reliability and productivity.

	b.  TBI is listed on his MEB as migraine headaches and tension headaches secondary to TBI.  He suffered a TBI when he hit his head jumping through a window.  There was no line of duty.  Since returning from deployment he has had problems with memory and headaches.  

	c.  The PEB recommended a combined physical disability rating of 70 percent and placement on the TDRL with future reexamination.  The applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case.

11.  On 17 August 2010, the U.S. Army Physical Disability Agency (USAPDA) published Orders D228-17 honorably discharging him from the ARNG by reason of disability and placing him on the TDRL in the rank of second lieutenant effective 21 September 2010, in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 

12.  On 25 October 2010, the NGB published Special Orders Number 236 AR withdrawing his Federal recognition effective 21 September 2010. 

13.  He underwent a TDRL examination in 2011/2012.  Following that, a TDRL PEB convened on 27 January 2012 and found the applicant's conditions did not improve to the extent that he was considered fit for duty and he remained unfit to reasonably perform the duties required by his previous grade and military specialty.  However, his condition at the time was considered sufficiently stable for final adjudication.  He was rated as 50 percent disabled for PTSD and 
50 percent disabled for migraine headaches.  The PEB recommended permanent retirement.  He was counseled and concurred. 

14.  On 7 February 2012, the USAPDA published Orders D38-11 removing the applicant from the TDRL and permanently retiring him effective 7 February 2012 at a combined rating of 80 percent. 

15.  Army Regulation 635-40 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

16.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years allowed by 10 USC, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

17.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  It states the DD Form 214 is a summary of a Soldier's most recent period of continuous active service.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  Paragraph 2-1(b)3 provides that a DD Form 214 will not be prepared for Soldiers removed from the TDRL.  Consolidation of DD Forms 214 is not authorized.

18.  Army Regulation 635-8 (Separation Processing and Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It states the DD Form 214 is a summary of a Soldier's most recent period of continuous 



active service.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  

	a.  Paragraph 5-1 identifies the situations for which a DD Form 214 is issued. It states, except as provided in paragraph 5–2, a DD Form 214 will be prepared for Soldiers in the following categories:

		(1)  Regular Army (RA) Soldiers on termination of active duty because of administrative separation (including separation because of retirement or expiration term of service), physical disability separation, or punitive discharge resulting from a court-martial.

		(2)  Reserve Component (RC) Soldiers completing 90 days or more days of continuous active duty.  For example, such periods may consist of Active Duty for Operational Support (ADOS), contingency operations-ADOS, active duty operational support-RC, Active Guard Reserve (AGR), or full-time National Guard duty for operational support.

		(3)  RC Soldiers separated for cause or physical disability regardless of the length of time served on active duty. 

		(4)  Recalled retirees on active duty reverting to retired status regardless of the period of active duty service.  

		(5)  ARNG and U.S. Army Reserve (USAR) Soldiers mobilized under 
10 USC 12301(a), 12302, or 12304 and ARNG Soldiers called into Federal service under 10 USC 15 or 10 USC 12406, regardless of length of mobilization, when transitioned from active duty.  Soldiers who report to a mobilization station and are found unqualified for active duty within the first 30 days will be excluded from this provision.  They will receive a DD Form 220 (Active Duty Report).

		(6)  RC Soldiers completing active duty that results in the award of a military occupational specialty, even when the active duty period was less than 90 days (for example, completion of the advanced individual training component of ARNG Alternate Training Program or USAR Split Training Program).

		(7)  Soldiers changing their status or component while serving on active duty as outlined below: (a) Enlisted Soldiers discharged to continue on active duty as a commissioned or warrant officer, or a warrant officer terminating warrant status to continue on active duty as a commissioned officer; (b) Officers who revert to enlisted status in accordance with Army Regulation 600–8–24 (Officer Transfers or Discharges), chapter 3; (c) ARNG Soldiers separated from Title 32 AGR status to enter Title 10 activation status, or vice versa; (d) Active duty officers approved for inter-service transfer to another Uniformed Service; and (e) U.S. Military Academy (USMA) cadets who are separated from USMA prior to graduation, pursuant to applicable Army Regulations (in addition, if a cadet entered USMA from an active duty status, USMA will issue the cadet a 
DD Form 214, upon entry). 

	b.  Paragraph 5-2 identifies situations when not to use a DD Form 214.  It states a DD Form 214 will not be prepared for personnel being removed from the TDRL.

19.  Army Regulation 600-8-22 (Military awards) states the Afghanistan Campaign Medal is awarded to members who have served in direct support of OEF.  The area of eligibility encompasses all the land area of the country of Afghanistan and all air spaces above the land area.  The period of eligibility is on or after 11 September 2001 to a future date to be determined by the Secretary of Defense or the cessation of OEF.  A bronze service star is authorized for wear with this medal for participation in each credited campaign.  Approved designated Afghanistan campaigns are:

* Liberation of Afghanistan (11 September 2001-30 November 2001)
* Consolidation I (1 December 2001-30 September 2006)
* Consolidation II (1 October 2006-30 November 2009)
* Consolidation III (1 December 2009 – 30 June 2011)
* Transition I (1 July 2011-31 December 2014)
* Transition II (1 January 2015-date to be determined)

20.  The NATO Medal is awarded by the Secretary-General of NATO to military and civilian members of the Armed Forces of the United States who participate in designated NATO operations.  U.S. service members serving in Afghanistan are eligible for the NATO Medal after they meet certain requirements in the area of eligibility.   Acceptance of the NATO Medal has been approved for U.S. military personnel who serve under NATO command or operational control in direct support of the above NATO operations. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the ARNG as a warrant officer from 25 July 2002 to 31 July 2007.  During this period of ARNG service:   

	a.  He entered ADT on 17 November 2002 and he was honorably released from ADT on 13 March 2003.  He completed 3 months and 27 days of active service.  He was issued a DD Form 214 to capture his active duty service because RC Soldiers completing 90 days or more days of continuous active duty are issued a DD Form 214.

	b.  He entered active duty on 5 January 2006 and he was honorably released from active duty on 27 February 2007.  He completed 1 year, 1 month, and 
23 days of active service.  He was issued a DD Form 214 to capture his active duty service because he completed more than 90 days of continuous active service.

2.  Following his discharge from warrant officer status, the applicant was appointed as a Reserve commissioned officer of the ARNG and served as a officer of the NJARNG from 1 August 2007 to 21 September 2010.  During this period of ARNG service: 

	a.  He did not serve a qualifying period of active service which would have warranted the issuance of a DD Form 214.  

	b.  He was considered by a PEB that recommended placing him on the TDRL on 21 September 2010.  By regulation, RC Soldiers separated for cause or physical disability regardless of the length of time served on active duty are issued a DD Form 214.  

	c.  However, the DD Form 214 is a summary of a Soldier's most recent period of continuous active service.  Reserve time is not listed on the DD Form 214 because it is not active service.  There is no evidence in his records and he provides none to show he completed another qualifying period of active service that would have required the issuance of a separate DD Form 214 at the time he was placed on the TDRL.    

	d.  But even when a Soldier is issued a DD Form 214 when placed on the TDRL, time spent on the TDRL is not active duty time; it is retired time.  That is why a DD Form 214 will not be prepared for personnel being removed from the TDRL, regardless of whether placed on the PDRL or separated with severance pay. 

3.  Again, the DD Form 214 is a summary of a Soldier's most recent period of continuous active service.  Consolidation of two or more DD Forms 214 is not authorized.

4.  The Bronze Star Medal and Meritorious Service Medal were not listed on his 2007 DD Form 214.  This was corrected via the issuance of a DD Form 215.  A DD Form 215 is specifically used to correct errors on the DD Form 214.  Both awards are now listed on his 2007 DD Form 214, due to the issuance of a 
DD Form 215. 

5.  The NATO Medal is listed on the DD Form 214 as "NATO Medal."  While there is a requirement to list a second or a subsequent award of the NATO Medal, there is no requirement to list the country associated with the NATO Medal.  

6.  The applicant served in Afghanistan from 24 February 2006 to 21 February 2007.  During this timeframe, two campaigns were approved: the Consolidation I (1 December 2001-30 September 2006) and the Consolidation II (1 October 2006-30 November 2009) campaigns.  The applicant meets the criteria to have two bronze services stars for wear on his already-awarded Afghanistan Campaign Medal. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding two bronze service stars to his already-awarded Afghanistan Service Medal and correction of his DD Form 214, ending on 27 February 2007 to show those stars. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* the issuance of a separate DD Form 214 at the time he was placed on the TDRL in 2010 



* the issuance of a separate DD Form 214 at the time he was placed on the permanent disability retired list in 2012
* consolidating all his awards and decorations onto one DD Form 214 for his PDRL 
* correction of his NATO Metal to reflect Afghanistan




      _______ _   _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)                                         AR20150004375



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ABCMR Record of Proceedings (cont)                                         AR20150004375



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