MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        

                  BOARD DATE: 9 October 2003
                  DOCKET NUMBER: AR2003085676

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
MR. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. Robert J. Osborn		Member
Ms. Eloise C. Prendergast .		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that her honorable discharge from the United States Army Reserve (USAR) of 14 October 1999 be changed to a medical disability retirement, and that she be considered for early retirement rather than discharge from the Army.

APPLICANT STATES: In effect, that she did not understand her full medical dilemma until 24 February 2002. She claims that from the date of her injury until now, the Army has moved extremely slow and has taken much too long to consolidate data. The applicant also requests that the coursework she completed on 5 May 1983 be honored as the content was required in the Army Nurse Corps as part of annual mandatory competency certification process, which will convert her first year of service to a good year giving her a total of
17 years of service. In support of her application, she provides copies of the line of duty investigation conducted in her case, military medical treatment records, private physician treatment records, and Department of Veterans Affairs (VA) clinical records. She also provides documents verifying the continuing education units that were relevant during her first year of service in the United States Army Reserve (USAR).

EVIDENCE OF RECORD: The applicant's military records show:

The applicant was appointed a first lieutenant in the Army Nurse Corps (ANC) of the USAR on 4 May 1982. At the time of her appointment, she was granted five years of constructive credit for appointment grade and date of rank purposes.

On 19 September 1997, the applicant incurred an injury to her shoulder while she was on active duty for training (ADT). She was treated for the injury and was diagnosed with a dislocated right shoulder.

A Statement of Medical Examination and Duty Status (DA Form 2173), dated
24 September 1997, indicates that the applicant’s injury was incurred in the line of duty. The form confirms that the applicant was injured on 19 September 1997, while on ADT, was treated for the injury, diagnosed with a dislocated shoulder, placed on quarters for the remainder of the ADT, and advised to seek follow-up treatment.

A Physical Profile (DA Form 3349), dated 16 October 1997, indicates that the applicant was placed on a temporary profile based on her shoulder injury, and the last record of medical treatment for this injury prior to her discharge was
21 January 1998.

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In January 1998, the applicant requested that her mandatory removal date be extended through 31 March 2003, age 68. In her request, she commented that she would be unable to complete 20 years of qualifying service for retired pay by the end of the requested extension, and that she understood that she could be removed before becoming eligible for retired pay. The applicant raised no medical factors in this request. She was extended only through 31 March 1999.

On 2 May 1999, the applicant’s commander resubmitted the packet requesting that the applicant’s MRD be extended through age 67. This request indicated that the applicant was performing duties as the Assistant Chief Nurse of the organization and that there was no Chief Nurse assigned at the time. No medical factors were raised when this request was made.

On 14 October 1999, the applicant was discharged from the USAR under the provisions of chapter 7, Army Regulation 140-10, at age 64. A Reserve Personnel Accounting System (RPAS) document on file confirms that as of the date of her separation, the applicant had completed 16 years of qualifying service for Reserve retirement.

The applicant provides a VA claim packet with associated medical documentation and a rating decision from the VA that confirms her dislocated shoulder was determined to be service connected and that they granted her a disability rating and compensation from the VA.

She also provides documents that confirm she completed various training related to her specialty between 1983 and 1999.

Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR soldiers. Chapter 7 contains guidance on the removal from an active Reserve status. Paragraph 7-2 contains guidance on mandatory removal for age. It states, in pertinent part, that field grade officers will be removed when they reach the maximum age of 60. Section III of chapter 7 provides exceptions to removal of Army Medical Department (AMEDD) branch officers for maximum age. It states, in pertinent part, that USAR officers of the AMEDD branch may apply for extension to age 64, or age 68, as appropriate and in effect extensions will be approved based on the needs of the Army.

Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth the 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.

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Chapter 3 of Army Regulation 635-40 contains the policy and outlines the standards for determining unfitness because of physical disability. It states, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

Army Regulation 135-101 prescribes policy, procedures, and eligibility criteria for appointment in the Reserve Components of the Army, in the six branches of the Army Medical Department (AMEDD). Paragraph 3-4 (Transition Credit) states, in pertinent part, that the grade and date of rank upon appointment will be determined by the law and regulations in effect on the date of the appointment.

Department of Defense Instruction (DODI) 6000-13 (Medical Manpower and Personnel) contains guidance on granting constructive credit to health care professionals for additional education, training, and experience in order to provide them an entry level grade and date of rank comparable to that obtained by officers who begin commissioned service after obtaining a baccalaureate degree and serve for a period of time it would take to gain the additional education. Subsequent to 14 September 1981, constructive credit is applied for appointment grade and date of rank purposes only, and is not creditable service for pay related purposes.

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DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes the applicant’s contention that her honorable discharge from the USAR of 14 October 1999 should be changed to a medical disability retirement and that she be considered for early retirement rather than discharge from the Army. However, it finds insufficient evidence to support this claim.

2. The medical treatment records on file and provided by the applicant confirm that she suffered an injury to her right shoulder while she was performing ADT in 1997. This injury was considered in the line of duty and the applicant was treated for this injury. There is no indication that the applicant was rendered unfit for further service as a result of this injury.

3. The evidence of record further confirms that the applicant continued to perform her duties subsequent to receiving her shoulder injury and in fact in 1998, she requested an extension of her mandatory removal for age until 2003. This request was supported by her chain of command and there was no claim of medical unfitness made in connection with this extension request.

4. It is clear from the evidence provided by the applicant that the VA provided her medical treatment and disability benefits based on the shoulder injury in question. However, this does not mean that her condition was medically unfitting for further service at the time of her discharge. The VA assigns disability ratings based on its own policies and regulations and it is not required by law to determine medical unfitness for further military service. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

5. The applicant also provides documents that show she completed specialty related education and training after her appointment in the USAR. However, constructive credit is granted in conjunction with appointment for grade and date of rank purposes. Subsequent to 14 September 1981, it is not creditable as service for pay related purposes.

6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

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7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_ECP___ ___RO__ __RJO__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003085679
SUFFIX
RECON
DATE BOARDED	2003/09/DD
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1999/10/14
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON	MRD - Age
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 995	145.0000
2. 22	102.0800
3.
4.
5.
6.