RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060010903 


	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. Gerard W. Schwartz

Acting Director

Ms. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Ray M. Thomas

Member

Ms. Rea M. Nuppenau

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, that her discharge be voided and that she be processed for a physical disability separation with resultant benefits and severance pay.

2.  The applicant states, in effect, that she was not processed for separation through the Army Physical Disability Evaluation System (PDES) after being found unfit for duty.  She also states that she was not provided with legal counsel during her separation process and that her medical fitness for retention physical was incomplete.

3.  The applicant provides a copy of her discharge order; several copies of self-authored memorandums relating to her attempts to secure legal counsel; and a letter from Department of the Army, U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, Missouri, dated 6 June 1996.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 13 August 1997, the date of her discharge from the U.S. Army Reserve (USAR).  The application submitted in this case is dated 24 July 2006, and received on 2 August 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 a captain in the USAR.  She executed her oath of office on 23 August 1985.  

4.  On 8 September 1995, the applicant underwent a fitness for duty physical examination which found her able to perform an Army Physical Fitness Test (APFT) and qualified for military service.  On 23 September 1995, her command initiated involuntary separation action against her based upon substandard performance of duty, failure to take and/or pass an (APFT) since June 1991 and receipt of a letter of reprimand.  The separation action also noted the applicant also had a long history of being overweight and participation in the Army weight control program.

5.  On 30 October 1995, the applicant underwent a second, follow-up fit for duty examination.  At this examination she was recommended for further specialist evaluation, a permanent profile, and consideration for a medical board.

6.  On 10 January 1996, the applicant underwent a complete physical.  She was diagnosed with chronic pelvic pain and pelvic adhesive disease due to the residual symptoms or complications from a hysterectomy in September 1994.  The examiner indicated that she did not meet retention standards.  She was placed on permanent profile; however, a medical board was not initiated as the applicant did not have a completed favorable line of duty (LOD) determination by her unit.

7.  On 13 August 1997, the applicant was honorably discharged from the USAR because of physical disqualification.  She completed 11 years, 11 months and 21 days of military service.  Although the applicant's reason for discharge was changed to being physically disqualified, her discharge packet is not contained in the official record.

8.  The applicant submitted several self-authored memoranda regarding her attempts to secure legal counsel when she was originally recommended for involuntary separation due to APFT failure and a letter of reprimand.

9.  The applicant provided a copy of a letter from ARPERCEN to her regional command indicating the applicant should have undergone an Medical Evaluation Board and that her permanent profile was incomplete.

10.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Chapter 8 outlines the rules for processing Soldiers of the Reserve components who are on active duty for a period of less than 30 days or on inactive duty training through the disability system.  A change in the law in 1986 provided for disability processing of Soldiers who incur or aggravate an injury or disease in the line of duty while performing inactive or active duty training.  Referral for processing does not mean an automatic entitlement to disability compensation.  Once referred, a determination must be made whether the disability was the proximate result of performing duty.  Proximate result establishes a casual relationship between the disability and the required military duty.  

11.  Title 10, U. S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least
60 years of age; has performed at least 20 years of qualifying service; and, having completed the service requirement during the period beginning on 1 October 1994 and ending on 30 September 2001, shall have performed the last six years of qualifying service while a member of a reserve component.  

12.  Title 10, U.S. Code, section 12731a is the temporary special retirement qualification authority.  It provides that, during the period 1 October 1991 through 30 September 2001, a member of the Selected Reserve who has completed at least 15, and less than 20, years of qualifying service may, upon the request of the member, be transferred to the Retired Reserve.  

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of Government error in this case.

2.  The applicant was found physically disqualified for retention.  Since a LOD had not been performed, she was not referred to an MEB.  There is no evidence to show that any other conditions were unfitting or the proximate result of her performing duty. 

3.  Further, referral for medical processing does not mean an automatic entitlement to disability compensation.  Once referred, a determination must be made whether the disability was the proximate result of performing duty.  There is no evidence available to show a LOD was performed.  However, even if a LOD had been performed, it is doubtful that her diagnosed pelvic adhesive disease would have been the proximate result of her performing duty.  Therefore, even in the absence of an LOD, the applicant was not prejudiced.

3.  The applicant did not have sufficient service to be eligible for either a 20-year non-regular retirement or a 15-year temporary early non-regular retirement.

4.  Based on the available record, the Board presumes administrative regularity in the discharge process.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, there is no basis upon which to change her discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 August 1997; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
12 August 2000.  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

__jtm___  __tmr___  __rmn___  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.



							John T. Meixell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060010903
SUFFIX

RECON

DATE BOARDED
20070417
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
19970817
DISCHARGE AUTHORITY
AR 135-175  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.