IN THE CASE OF: BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20150014107 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: 22 December 2016 DOCKET NUMBER: AR20150014107 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: 22 December 2016 DOCKET NUMBER: AR20150014107 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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he served beyond his current separation date of 26 July 1996 to 8 October 1996. 2. The applicant states, in effect, he voluntarily extended his period of enlistment by 6 months to complete his medical evaluation board (MEB)/physical evaluation board (PEB) process, which made his new expiration term of service (ETS) date 8 October 1996. 3. The applicant provides: * an 8 March 1996 request for extension * DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army) approval * 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 on 9 August 1991, he completed training, and he was awarded military occupational specialty 31U (Signal Support Systems Specialist). 3. He sustained an injury to his back as a result of a bad parachute landing on 8 June 1992 and he was subsequently diagnosed with mid-thoracic spine kyphosis, secondary to Scheuermann's disease. 4. The applicant's back condition worsened and he developed a herniated disc at T11 – T12. He was referred to an MEB. 6. A memorandum, dated 8 March 1996, shows he requested a 6-month ETS extension to complete his MEB/PEB process. 7. On 3 April 1996, the applicant completed a DA Form 1695-E requesting a 6-month voluntarily extension of his enlistment pending final evaluation by a MEB/PEB, making his new ETS date 8 October 1996. 8. A DA Form 3340-R, dated 8 April 1996, shows the applicant’s request was approved pending final evaluation by an MEB/PEB. 9. On 17 April 1996, he was afforded an MEB that found he was suffering from chronic back pain due to mid-thoracic spine kyphosis with a herniated disc. He was referred to a PEB. 10. On 30 April 1996, a PEB convened and found the applicant unfit for duty due to his back conditions and recommended a 10 percent disability rating and separation with severance pay. The applicant concurred with the PEB findings and recommendations. The DA Form 199 (PEB Proceedings) shows this board noted the applicant had a request for retention beyond his ETS to complete MEB/PEB processing. 11. The PEB findings and recommendations were approved by the Office of the Secretary of the Army (SA) on 17 May 1996. 12. A message, dated 29 May 1996, states the applicant was authorized 20 days of permissive temporary duty (PTDY), effective 21 June 1996, and 16 days of terminal leave (TMLV) effective 11 July 1996. He was to be discharged no later than 26 July 1996. 13. The applicant's DD Form 214 shows he was honorably discharged on 26 July 1996 due to disability with severance pay. He had completed 4 years, 11 months, and 18 days of creditable active service with no lost time. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, provided that: a. A Soldier may be retained on active duty beyond their normal ETS to undergo or complete MEB/PEB processing. b. If the Soldier accepts the findings and recommendations of the informal PEB, the proceedings will be approved for the SA and forwarded to the Army Personnel Command (now known as the Army Human Resources Command) for final disposition. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2–9 provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. DISCUSSION: 1. The applicant voluntarily requested an extension and he was authorized to extend on active duty for 6 months beyond his normal ETS. However, the request also stipulated that the extension was for the purpose of completing his MEB/PEB processing. That processing was completed on or about 17 May 1996 with the approval of the PEB findings and recommendations. 2. Upon completion of his PEB processing, the applicant was granted 20 days of PTDY and 16 days of TMLV, and he was discharged upon completion of those periods. 3. While the applicant was authorized to remain on active duty until 8 October 1996 to complete his PEB processing, once he completed the PEB processing, the Army was not obligated to retain him simply to meet the maximum extension date. 4. Further, the applicant has not provided and the record does not contain any evidence that shows he served on active duty after 26 July 1969. The terminal date of his period of active service is correct as shown on the DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014107 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014107 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2