IN THE CASE OF: BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20160017472 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x___ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20160017472 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20160017472 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, correction of the applicant's below listed documents: * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 March 1999 – amend item 12b (Record of Service – Separation Date This Period) to show "1999/03/29, vice 1999/03/18" * DD Form 1966 (Record of Military Processing – Armed Forces of the United States) – delete the entry of "23 March 1999" in item 17a (Delayed Entry Program Enlistment Data – Enlistment Date) 2. Counsel states, in effect: a. The applicant is missing 11 days of active service that should have been reflected on his DD Form 214 for the period ending 18 March 1999. (1) The applicant initially enlisted in the New Jersey Army National Guard (NJARNG) on 10 July 1998. He was ordered to active duty for training and, on 30 October 1998, he reported to one unit station training (OSUT) at Fort Benning, GA. (2) During his training, his drill sergeant recruited and mentored the applicant. He suggested the applicant enlist in the Regular Army (RA), to which the applicant agreed. The applicant completed OSUT on 18 March 1999, and on the same date, his NJARNG commander approved his conditional release from the NJARNG. (3) By regulation, the conditional release was only effective upon his enlistment in the RA, which occurred on 30 March 1999. As such, the effective date of release from the NJARNG was 29 March 1999. (4) Unfortunately, it appears his DD Form 214 was "batch processed" upon his graduation with the other NJARNG Soldiers and, thus, did not reflect his "holdover" status pending his RA enlistment. (5) During this "holdover" period, the applicant continued to wear his uniform and was subject to the control of his unit. He was not free to leave, and reported for duty each day. He has a corroborating statement provided by his former drill sergeant, Sergeant First Class (SFC) (Retired) TLW. (6) The applicant has repeatedly been told he needed to provide proof of being paid while on active duty. Unfortunately, it is extremely difficult to locate supporting records. He remembers he was paid, but no longer has copies of his Leave and Earnings Statements (LES). His bank also does not keep records that far back. (7) While he cannot substantiate he received active duty pay, he can validate he was physically at Fort Benning. * he remained in uniform, subject to the orders of the noncommissioned officers and officers over him * his DD Form 1966 reflects his address as being his OSUT unit * his RA enlistment paperwork was processed through the U.S. Army Recruiting Battalion (USARB), Atlanta, GA * he remained at Fort Benning until he was to report to the Military Entrance Processing Station (MEPS) pursuant to his enlistment contract * he essentially remained at Fort Benning until his reassignment to his first RA duty station at Fort Drum, NY b. The applicant is pending separation pursuant to the Qualitative Management Program (QMP) and, while he accepts the findings of the QMP board, he maintains he qualifies to be retained the additional two years required to be eligible for a length of service retirement at 20 years. (1) Title 10, U.S. Code, section 1176 (Enlisted Members: retention after completion of 18 or more, but less than 20, years of service), permits RA enlisted Soldiers to be retained on active duty until qualified for retirement when they have been selected for involuntary separation. (2) Amending his records to show he served the additional 11 days will correct his years of total active service from 17 years, 11 months, and 21 days to over 18 years. (3) Regarding the 11-day period, counsel cites case law that he contends discusses the premise of being subject to the military command structure, thus remaining on active duty. The cases are: * U.S. v. Mansbarger, 20 CMR (Court of Military Review) 449 (CMR 1955) * Madsen v. U.S., 841 F.2d 1011 (10th Cir. (Circuit) 1987) 3. Counsel provides: * DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 10 July 1998 * Orders Number 138-001, dated 23 July 1998 * Orders Number 214-03, dated 30 October 1998 * DD Form 214 for the period ending 18 March 1999 * DA Form 4187 (Personnel Action), dated 18 March 1999 * U.S. Army Recruiting Command (USAREC) Form 978 (Continuation of Remarks (DA Form 4187) Regular Army Enlistment Delay for Applicants with Prior Service or an Existing Military Service Obligation), dated 23 March 1999 * memorandum, dated 16 March 1999, subject: Conditional Release [applicant] * DD Form 368 (Request for Conditional Release), dated 18 March 1999 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 29 March 1999 * Orders Number 111-016, dated 21 April 1999 * DD Form 4, dated 30 March 1999 * USAREC Form 1127 (Supplement to DA Form 3286-67 (Statement for Enlistment (or Appointment) - Army Policy), dated 23 March 1999 * extract from DD Form 1966, dated 30 March 1999 * NGB 23B (ARNG Retirement Points History Statement), dated 11 May 2016 * DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes), dated 9 May 2016 * Letter of Support, dated 17 June 2016 * screenshot of a text message, dated 16 June (2016) * memorandum, dated 24 August 2016, subject: Request for Commander's Inquiry into Service Record of [applicant], signed by the applicant * sworn declaration of [applicant], dated 31 August 2016 * memorandum for record, dated 19 October 2016, subject: [applicant] Request for an Exception to Policy to be Considered Eligible for Sanctuary, signed by the applicant's squadron commander * letter, undated, signed by the applicant * memorandum, dated 19 October 2016, subject: Request for an Exception to Policy to Inquire on [applicant's] Active Duty Service * memorandum, dated 24 October 2016, subject: Exception to QMP Policy Response for [applicant] CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the NJARNG on 10 July 1998. Orders Number 138-001, dated 23 July 1998, issued by MEPS, Fort Hamilton, NY, ordered him to initial active duty for training (IADT) at Fort Benning with a reporting date of 30 October 1998. 2. A DD Form 214 shows the applicant completed his IADT on 18 March 1999, having served 4 months and 19 days of net active creditable service. It also states: * item 8 (Last Duty Assignment and Major Command) – Company C, 1st Battalion, 19th Infantry Regiment, Infantry Training Brigade * item 9 (Command to Which Transferred) – NJARNG * item 11 (Primary Specialty) – 11B10 (Infantryman) * item 12b – 18 March 1999 * item 14 (Military Education) – Infantryman, 14 weeks, March 1999 * item 25 (Separation Authority) shows chapter 4 (Separation for Expiration of Service Obligation), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) * item 28 (Narrative Reason for Separation) – Completion of Required Active Service 3. The applicant provided the following documents: a. Memorandum, dated 16 March 1999, signed by the NJARNG Director, Personnel and Community Services, granting the applicant conditional release for the purpose of enlistment into the U.S. Army. b. A DA Form 4187, dated 18 March 1999, addressed to the USARB, Atlanta, requesting enlistment in the RA. This form indicates his request was approved that same date. c. A DA Form 368 (Request for Conditional Release) indicating, on 18 March 1999, the applicant requested the NJARNG grant him a conditional release. This form indicates approval by an official of the NJARNG on 18 March 1999. 4. His official military personnel file shows: a. A DD Form 1966 reflecting his enlistment in the delayed entry program on 23 March 1999. b. A DD Form 4 showing he enlisted in the RA on 30 March 1999. c. No documentation, in the form of orders or other written authorizations, showing his period of active service was extended beyond 18 March 1999. 5. The applicant served continuously through reenlistments and extensions and rose to the rank/grade of staff sergeant. A QMP board selected him for denial of continued active duty in April 2016. 6. Orders Number 203-0002, dated 21 July 2016, issued by Installation Management Command - Europe, assigned the applicant to the Bavaria Transition Center for separation processing. The orders show his discharge date as 1 November 2016. 7. A DD Form 214 indicates the applicant was honorably discharged on 1 November 2016. The separation authority is AR 635-200, chapter 19 (Qualitative Management Program), and the narrative reason for separation is non-retention on active duty. 8. The applicant further provides: a. Letter, dated 17 June 2016, by SFC TLW (Retired), the applicant's former drill sergeant in OSUT, in which he essentially states: * he served as a drill instructor in Company C, 1st Battalion, 19th Infantry Regiment, from May 1997 through May 2000 * he can affirm the applicant was assigned to his company and was waiting on orders from 19 March 1999 to 30 March 1999 * as he waited for orders, he performed duties in the arms room and barracks maintenance details b. Memorandum, dated 19 October 2016, subject: Request for an Exception to Policy to Inquire on [applicant's] Active Duty Service, addressed to the U.S. Army Human Resources Command (HRC) and signed by the 79th Colonel of the Regiment. It essentially acknowledges the applicant was selected for separation under QMP and requests a delay in his separation date until it can be determined if he is owed an additional 11 days of active service. c. Memorandum, dated 24 October 2016, subject: Exception to QMP Policy Response for [applicant]; prepared by HRC and directed to the applicant, denying the applicant's request to be extended an additional 9 days. 9. A memorandum, dated 7 November 2016, subject: Voiding DD Form 214 for [applicant], states, in accordance with AR 635-5 (Separation Documents), a DD Form 214 for the period ending 1 November 2016 was voided because the applicant was medically extended until 8 November 2016. 10. Orders Number 312-003, dated 7 November 2016, issued by Installation Management Command - Europe, rescinded Orders Number 203-002, dated 21 July 2016 [his separation orders]. 11. A memorandum, dated 8 November 2016, subject: Approval of Retention on Active Duty of [applicant], signed by the Commanding General, 7th Army Training Command (ATC), states, in effect: a. On 2 November 2016, he received a request from the Commander, Landstuhl Regional Medical Center (LRMC), asking for the applicant to be retained on active duty past 1 November 2016 so that he could continue to receive health care. This request was made in accordance with AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 1-24 (Medical/Dental Care Required or Sick in Hospital when Period of Service Expires). b. On 29 October 2016, the applicant was injured when he fell down a flight of stairs at his residence. He was admitted to a German hospital for inpatient care and was released on 31 October 2016. Subsequent to his release, and during a meeting with the Squadron Surgeon, the applicant expressed suicidal ideations. He was immediately referred to Behavioral Health (BH). Based on BH recommendations, he was sent to LRMC for further evaluation and potential inpatient treatment. c. The applicant's supervisory physician at LRMC determined continued in-hospital care is required. The applicant signed a sworn affidavit indicating his consent to be held past his separation date of 1 November 2016. d. In accordance with AR 635-200, paragraph 1-24, he is retaining the applicant on active duty for an indefinite period. Based on this, as of 11 November 2016, he will have attained more than 18 years of active service. Pursuant to paragraph 19-15 (Active Duty Retirement), subparagraph c, the applicant may now be retained to the 20-year retirement eligibility date upon his request. e. It is further understood, based on multiple conversations between the 7th ATC Staff Judge Advocate and the Enlisted Transition Branch, HRC, that if the applicant remains on active duty beyond 11 November 2016, HRC will adjust the applicant's mandatory retirement date to on or about 11 November 2018. f. The sole intent behind this retention is to ensure the applicant receives health care while he remains in an in-hospital status. There is no intent to pursue referral into the Physical Disability Evaluation System. REFERENCES: 1. AR 635-5 in effect at the time (1999), prescribed policies and procedures for the completion of the DD Form 214. Source documents include the DA Form 201 (Military Personnel Records Jacket, U.S. Army), DA Forms 2 and 2-1 (Personnel Qualification Records), and orders. With regard to completing item 12b (Separation Date This Period), this date is indicates the actual date of separation from active duty. 2. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. U.S. v. Mansbarger was an Army Court of Military Review case involving a U.S. Army Reserve officer. a. The officer was charged with two periods of absent without leave (AWOL) while on active duty with self-terminating orders. The first period of AWOL occurred prior to the termination of his active duty orders, while the second period took place after. b. The court found the Army had no jurisdiction for the second period of AWOL because the officer's orders had not been properly extended to cover that AWOL period. 4. Madsen v. U.S. was a case decided by the U.S. Court of Appeals, Tenth Circuit. a. The plaintiff was a U.S. Air Force officer who was injured while on terminal leave in anticipation of his military retirement. He was hospitalized, and a medical authority placed him on medical hold until after the date of his scheduled retirement. He sued the government, based on medical malpractice allegedly committed by Army medical personnel. b. The issue in this case was whether the plaintiff had grounds to sue the government, and hinged on determining if he was considered to be still on active duty while on terminal leave and medical hold. (Members of the uniformed services cannot bring tort suits against the government for injuries that "arise out of or in the course of activity incident to service (this is referred to as the "Feres Doctrine" and is based on the case of Feres v. U.S., decided by the Supreme Court in 1950.)) c. The court affirmed his active duty status and ruled he could not sue. DISCUSSION: 1. Counsel requests correction of the applicant's records to reflect an additional 11 days of active service, claimed as having been served between 19 March 1999 and 29 March 1999. In support, the applicant provides a statement from his drill sergeant at the time that affirms he remained in military uniform during the contended period, and performed military duties until his reassignment to Fort Drum. 2. The Board begins its consideration of each case with the presumption of administrative regularity. In this case, the evidence does not appear to overcome this presumption, and what has been provided by the applicant and his counsel does not sufficiently substantiate he was in an active duty status between 18 and 29 March 1999. a. While there are clear indications the applicant remained at Fort Benning until his reassignment to Fort Drum, neither the applicant nor the evidence of record offer proof his status was anything other than that of an NJARNG Soldier, in an inactive status, who was waiting for his RA enlistment date. b. There are no orders or other authorizing documents that would confirm his 18 March 1999 separation date was amended to 29 March 1999. There also are no pay documents showing he received active duty pay during the period in question. c. His DD Form 1966 indicates, as of 23 March 1999, he was in a delayed entry status pending his activation as an RA Soldier. d. Based on the foregoing, there does not appear to be sufficient evidence to support changing either his DD Form 214, ending 18 March 1999, or the entry of "23 March 1999" in item 17 on his DD Form 1966. 3. Counsel argues two court cases support his contention the applicant should be considered to be on active duty during the contended period. A review of both cases, however, does not appear to support counsel's contention. a. In U.S. v. Mansbarger, the court found the Army had no jurisdiction because appropriate action had not been taken to extend the accused self-terminating orders. In the current case, there is no evidence his IADT orders were extended. b. Regarding the case of Madsen v. U.S., the court held the plaintiff (a U.S. Air Force officer) was considered to be on active duty while on terminal leave and during medical hold, even though the latter included a period that extended beyond his scheduled retirement date. Significantly, medical authority had executed the steps required to allow this plaintiff to remain on active duty. No similar authority was proven to have extended the applicant's active duty. 4. The available evidence indicates the circumstances that led to his application to the Board have changed to the extent that the relief he requests is no longer necessary as a mechanism for allowing him to remain on active duty for the purpose of completing 20 years of active duty service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017472 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017472 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2