RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060008410 


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


Mr. Carl W.S. Chun

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. John T. Meixell

Member

Mr. Qawiy A. Sabree

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, disability retirement from the U.S. Army.

2.  The applicant states, in effect, at the time of his separation, he was not aware of his eligibility for disability retirement from the Army.  The applicant also states, in effect, he wants compensation for the injury he sustained while serving on inactive duty for training.

3.  The applicant provides a copy of Headquarters, U.S. Army (USA) Physical Evaluation Board (PEB), USA Physical Disability Agency (PDA), Fort Gordon, Georgia, TAPD-PEB-G, memorandum, dated 3 November 1992, subject:  Minority Report to Formal Physical Evaluation Board Hearing and Headquarters, Department of the Air Force, Air Education and Training Command, Chief, Inpatient Psychiatry, Keesler Medical Center, Keesler Air Force Base, Mississippi, letter, undated.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 19 December 1991, the date of his separation from the Army National Guard (ARNG).  The application submitted in this case is dated 7 June 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was commissioned and entered the U.S. Army Reserve (USAR) Control Group as a second lieutenant on 12 May 1984.

4.  On 20 June 1986, he entered active duty and attended the Chemical Officer Basic Course.  He was promoted to the grade of first lieutenant on 11 May 1987. The applicant was honorably released from active duty on 21 June 1989 after completing 3 years and 2 days net active service and transferred to the USAR Control Group.

5.  On 4 January 1990, the applicant was appointed as a first lieutenant in the Alabama Army National Guard (AL ARNG).  He was assigned to Headquarters and Headquarters Company, 167th Support Command, Birmingham, Alabama, and served as an Administrative Officer.  On 19 December 1991, the applicant was separated from the AL ARNG and transferred to the USAR Control Group (Disability - Retired Reserve), St. Louis, Missouri.

6.  The applicant's military service records contain a copy of a DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 22 July 1991, along with supporting documents.  Item 3 (Status), Block c, of the
DD Form 261 shows that the applicant was in an Inactive Duty Training (IDT) status from 25 May 1991 to 8 June 1981.  Item 9 (Basis for Findings), Block a (Circumstances) shows the incident occurred at 1451 hours, 4 June 1991, at Camp Shelby, Mississippi, the result of "Stress/Auto Accident."  Item 9, Block b (Medical Diagnosis) contains the entry "Schizopreniform Disorder."  Item 9,
Block g (Remarks) of the DD Form 261 shows, in pertinent part, that while participating in a Field Training Exercise (FTX) during Annual Training (AT), on order of the battalion commander, the applicant was transported to Camp Shelby Hospital for an evaluation due to several problems, including stress during the FTX.  The applicant was then transferred to Keesler Air Force Base (AFB) for evaluation and was returned fit for duty and placed on quarters.  Two days later, after the battalion came in from the FTX, the applicant wrecked his car in an apparent suicide attempt.  The applicant was transported to Camp Shelby Hospital for treatment and later transported by ambulance to Keesler AFB.  While enroute to Keesler AFB, the applicant broke out of the ambulance, flagged a car down and obtained a ride, but was later apprehended and transported back to Keesler AFB for another evaluation.

7.  Item 10 (Findings) of the DD Form 261 shows the Investigating Officer (IO)'s Findings of "In Line of Duty."  The DD Form 261 also shows that the colonel serving as Commander, ARNG Personnel Center, National Guard Bureau, Washington, District of Columbia, approved the Findings of the IO and found "In Line of Duty, EPTS [Existed Prior To Service] Aggravation."

8.  The applicant's military service records contain a copy of Departments of the Army and the Air Force, National Guard Bureau, Alexandria, Virginia, NGB-ARP-CR, memorandum, dated 23 September 1991, subject:  Report of Investigation [Applicant's Name and Social Security Number].  This document shows, in pertinent part, that the colonel, serving as Commander, ARNG Personnel Center, directed that, in view of the circumstance of the report of investigation, the applicant be evaluated regarding qualification for continued service.  This document also shows that authority was granted to admit the applicant to the nearest Federal Medical Facility for consultation and medical board, if indicated, to determine his medical fitness for retention in the ARNG in accordance with the provisions of Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

9.  The applicant's military service records are absent a report of any medical evaluation board (MEB) or physical evaluation board (PEB) proceedings.  In addition, coordination with Headquarters, U.S. Army Physical Disability Agency; Walter Reed Army Medical Center, Washington, District of Columbia; Headquarters, National Guard Bureau, Arlington, Virginia; and Headquarters, Military State Department, Army National Guard, Montgomery, Alabama failed to locate a copy of MEB or PEB proceedings pertaining to the applicant.

10.  The applicant's military service records contain a copy of NGB Form 22 (National Guard Bureau - Report of Separation and Record of Service), with an effective date of 19 December 1991.  This document shows, in pertinent part, that the applicant was honorably separated from the ARNG on 19 December 1991 and transferred to the USAR Control Group (Disability - Retired Reserve), St. Louis, Missouri.

11.  The applicant's military service records contain a copy of Headquarters, State Military Department, Office of the Adjutant General, Montgomery, Alabama, Orders 141-218, dated 20 May 1992.  This document shows, in pertinent part, that the applicant was separated from the ARNG on 19 December 1991 and transferred to the USAR Control Group (Disability - Retired Reserve), St. Louis, Missouri.

12.  In support of his application, the applicant provides a copy of Headquarters, USA PEB, USA PDA, memorandum, dated 3 November 1992, subject:  Minority Report of Formal Physical Evaluation Board Hearing, which shows, in pertinent part, that the colonel, serving as a medical member on the PEB, indicated "[s]chizophrenia is an underlying mental illness present in [the applicant] for years prior to his military service.  This is the common wisdom and consensus of the psychiatric community.  However, this Soldier's experience at Camp Shelby during AT permanently aggravated the EPTS condition.  His prior military service of three years in Germany on the border with the ACR [Armored Cavalry Division] was uneventful showing his psychiatric problems were not active prior to the experience at Camp Shelby.  I vote for permanent service aggravation of a known EPTS condition."  The applicant also provides a copy of Headquarters, Department of the Air Force, Air Education and Training Command, letter, undated, which shows, in pertinent part, that the major serving as Chief, Inpatient Psychiatry, Keesler Medical Center, confirmed that the applicant was hospitalized on the psychiatric ward of the medical center during the summer of 1991 and that she "dictated a medical board on [the applicant]."  She also states, "[a]t that time, I considered it line of duty and at least service aggravated."

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

14.  Chapter 8 (Reserve Components) of Army Regulation 635-40 outlines, in pertinent part, the rules for processing through the disability system Soldiers of the Reserve Components who are on active duty for a period of less than
30 days or on inactive duty training.  Paragraph 8-9 (Disposition) of this Army regulation provides that a Soldier not on an extended active duty who is unfit because of physical disability may be permanently retired or have his or her name placed on the temporary disability retired list if he or she has at least 20 years of service as defined in section 1208, Title 10, United States Code
(10 USC 1208); their disability is rated at 30 percent or more; and his or her disability occurred in the line of duty, and is the proximate result of performing active duty or IDT.  This paragraph also provides that a RC Soldier may be separated with severance pay if his or her disability is rated at less than
30 percent; he or she has less than 20 years of service as defined in 10 USC 1208; and their disability occurred in the line of duty, and is the proximate result of performing active duty or IDT.  This paragraph further provides that a RC Soldier may forfeit severance pay, be transferred to the Retired Reserve; and receive under the provision of Title 10, United States Code, Section 12731 non-disability retired pay at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he is entitled to compensation and disability retirement for the injury he sustained while serving on IDT.

2.  The evidence of record shows that, while on IDT, the applicant was involved in an automobile accident, hospitalized, and diagnosed with schizophreniform disorder.  The evidence of record also shows that the Commander, ARNG Personnel Center, NGB, approved the report of investigation with a finding of "In Line of Duty, EPTS Aggravation."  The evidence of record further shows that authority was granted to admit the applicant to the nearest Federal Medical Facility for consultation and medical board (if indicated) to determine his fitness for retention in the ARNG.
3.  The applicant provides a copy of Headquarters, USA PEB, USA PDA, Fort Gordon, Georgia, memorandum, dated 3 November 1992, subject:  Minority Report to Formal Physical Evaluation Board Hearing, which offers evidence that a PEB was conducted with a minority vote for permanent service aggravation of a known EPTS condition.  However, a copy of the PEB proceedings are not available for review by this Board.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  The applicant fails to provide such evidence.  As a result, the applicant's PEB proceedings are presumed proper and equitable.

4.  The evidence of record shows that the applicant was separated from the ARNG on 19 December 1991 and transferred to the USAR Control Group (Disability - Retired Reserve).

5.  There is no evidence of record to show that the U.S. Army misapplied either the medical factors involved or the governing regulatory guidance concerning the processing of the applicant's PEB or the separation action transferring him to the USAR Control Group (Disability - Retired Reserve).  Therefore, the applicant is not entitled to correction of his records.

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.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 December 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
18 December 1994.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MDM_  ___JTM__  ___QAS_  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____Mark D. Manning_____
          CHAIRPERSON




INDEX

CASE ID
AR20060008410
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/02/22
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19911219
DISCHARGE AUTHORITY
NGR 635-100, Paragraph 5a7
DISCHARGE REASON
Disability Retired Reserves
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
108.1000.0000
2.

3.

4.

5.

6.