BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150006117 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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 November 2007 to show he was medically retired due to combat related injuries. 2. He states he volunteered to return to active duty from retired status and he was injured in Afghanistan on a combat patrol. He states his initial commitment was extended so that he could be transferred to the Warrior Transition Battalion, Womac Army Center, Fort Bragg, NC, for further surgeries and medical care. He adds he remained at the battalion until he was released by his surgeon. He explains the error has greatly affected his 100 percent (%) entitlement to the Post 9/11 GI Bill. 3. He provides: * Self-authored statement * DD Forms 214 * Letter to his Congressman, dated 12 August 2014 * Department of Veterans Affairs (VA) documents * Orders A-07-715534A01, dated 1 August 2007 * Orders 207-94, dated 26 July 2006 * Orders 212-02, dated 31 July 2006 * Memorandum, subject: Request for Early Release from Active Duty (REFRAD) Applicant, dated 15 October 2007 * Orders 298-369, dated 25 October 2007 * Orders 298-368, dated 25 October 2007 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 10 July 2007 * Memorandum, subject: Informal Line of Duty Determination, dated 13 July 2007 * Orders A-07-715534, dated 10 July 2007 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. After having prior enlisted service in the Regular Army, on 11 May 1994, he was appointed as an U.S. Army Reserve warrant officer one. He served through numerous assignments and he was honorably retired on 28 February 2001, in the rank of chief warrant officer two. 3. On 16 July 2006, he was ordered to active duty in a retired status in support of Operation Enduring Freedom and Operation Noble Eagle. He served in Afghanistan from 23 August 2006 to 10 March 2007. 4. On 17 November 2006, he was seen at the Medical Retention Processing Unit, Fort Bragg, NC, as an outpatient. The applicant reported that on or about 27 August 2006, while out running, he injured his foot and later found that the foot had been fractured. Then in November 2006, while on a mission in Afghanistan, he exited his vehicle on a night operation and twisted his right leg causing tendon rupture. On 13 July 2007, his injury was determined to have been in the line of duty. 5. Orders, dated 10 July 2007, show the applicant was to be retained on active duty for a period of 5 months and 26 days to participate in the Reserve Component (RC) Medical Holdover Medical Retention Processing Program for completion of medical care and treatment at Fort Bragg, NC. His report date to A Company, Medical Retention was listed as 6 July 2007. The orders stated that the applicant would be entered into the Physical Disability Evaluation System (PDES) process at the earliest determination or if the applicant was unable to return to full military duty within 1 year of diagnosis of medical condition. It further stated that REFRAD was required upon completion of the medical care and treatment or for separation by reasons of physical disability. 6. Orders, dated 25 October 2007, show the applicant was attached to Company C, Warrior Transition Unit (WTU), For Bragg, NC, effective 5 July 2007 by verbal order of the commander for medical processing. 7. Orders, dated 25 October 2007, also show effective 25 October 2007, he was released from Company C, WTU and attached to Administrative/Legal Holdovers the following day for the purpose of REFRAD. 8. The applicant's record is void of any medical documents and/or evidence that indicates he was medically unfit for separation. Additionally, his record is void of a medical screening document prior to his REFRAD. 9. On 15 October 2007, the Chief, Mobilization Support Branch, U.S. Army Human Resources Command (HRC), approved a request for his early REFRAD. 10. On 21 November 2007, he was REFRAD and reverted to his retired status. His DD Form 214 shows in: * Item 25 (Separation Authority), Army Regulation 601-10 (Management and Recall to Active Duty of Retired Soldiers of the Army in Support of Mobilization and Peacetime Operations) * Item 26 (Separation Code) "VBK" * Item 28 (Narrative Reason for Separation) Completion of Required Active Service 11. The applicant provided the following VA documents: a. His rating decision document, dated 29 May 2009, that shows he received a 10% disability rating for each of the below listed conditions with a combined disability rating of 60% effective 22 November 2007. * Degenerative changes, cervical spine * Status post left hip strain * Status post right hip strain * Left knee strain * Right knee strain, status post arthroscopic surgery with residuals * Status post surgery, right ankle peroneal nerve regrooving, tendon repairs, and degenerative joint disease * Bilateral persistent tinnitus b. A Certificate of Eligibility, dated 1 April 2014, that shows he is entitled to receive 60% of the benefits payable under the Post 9/11 GI Bill program for training offered by an institution of higher education. The VA stated their decision was based on his service during the period 16 July 2006 to 21 November 2007, a total of 494 days. 12. In a letter to his Congressman, dated 12 August 2014, the applicant requested his Congressman's assistance in rectifying an error in his eligibility of 60% for the Post 9/11 GI Bill. On 10 September 2014, a VA representative explained to the Congressman that the applicant's DD Form 214 indicated he [applicant] served in the military from 16 July 2006 to 21 November 2007 and he was eligible at the 60% benefit level. However, after reviewing the applicant's records it was determined that he was on medical hold during the period 8 July 2007 through 11 November 2007 and that period was not qualifying active duty service for the purpose of Post 9/11 GI Bill eligibility. Therefore, his benefit level decreased from 60% to 50%. 13. Army Regulation 601-10 states that retirees will be medically screened prior to release from active duty. The HRC will publish orders for retirees who need to be placed on medical hold. When a retiree out-processes, the REFRAD order will be annotated with the following statement "Soldier is eligible for transitional health care under 10 USC 1145 until (date)." Failure to out-process in the absence of extension orders puts the retiree and their Family at risk of not receiving necessary medical care in the event of an emergency. Retirees who are returning to a retired status will receive orders and transition centers will forward a copy of the REFRAD order and DD Form 214 to HRC-St Louis. 14. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribes the specific authorities, reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214. This regulation provides that SPD code VBK applies to persons separated who completed the required active service. DISCUSSION AND CONCLUSIONS: 1. The applicant requests, in effect, that his DD Form 214 for the period ending on 21 November 2007 be corrected to show he was medically retired due to combat related injuries so that he may be entitled to full education benefits under the Post 9/11 GI Bill. There are no provisions in Army regulations that allow changing a discharge for the sole purpose of securing veterans' benefits. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the change. 2. The evidence of record shows on 17 November 2006, the applicant reported an injury to his foot that was later determined to have been a fracture and a twisted right leg which caused a tendon rupture while in Afghanistan. On 13 July 2007, his injuries were determined to have been caused in the line of duty. 3. He was subsequently retained on active duty for a period listed as 5 months and 26 days to participate in the RC Medical Holdover Medical Retention Processing Program for completion of his medical care and treatment at Fort Bragg. He was attached to the WTU on 5 July 2007 and entered into the PDES process. His orders stated that REFRAD was required upon completion of the medical care and treatment or for separation by reasons of physical disability. 4. There is no medical evidence and he did not provide any to show he was medically unfit at the time of his separation. The fact that he was "reverted" to his retirement status and his DD Form 214 lists the narrative reason for his discharge as completion of required active service with the SPD code of VBK reflecting the same, is an indication that he was medically cleared for separation. 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) AR20150006117 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006117 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1