RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 May 2008
	DOCKET NUMBER:  AR20070008379 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 his non-regular retirement be changed to a retirement due to permanent physical disability.

2.  The applicant essentially states that there is no documentation to show that he should have been retired due to permanent physical disability at the time of his retirement from the United States Army Reserve (USAR).  He also states, in effect, that before the Army involuntarily or voluntarily retires a reservist who completes 20 or more years of service, the unit should provide him/her with a complete physical examination, but that this was not the case for him.  He further states that after he completed his 20 years of service, the Army automatically retired him, and that he just received his retirement papers at his home.  He continued by essentially stating that reservists generally are not totally knowledgeable of Army regulations and any Federal statutes regarding their entitlements, nor do they know the procedures and requirements.  He also states, in effect, that reservists generally do not know what they should receive, what they should ask for, and what they should know.  Additionally, he states that as the years passed by, his physical conditions which originated on active duty worsened.  He also essentially states that he developed other physical disabilities while he was in the USAR, and aggravated previous physical disabilities as well. 

3.  The applicant provides a letter, dated 21 March 2007, with an enclosure, a letter, dated 31 May 2006, from a doctor who has been seeing the applicant as his patient since 2003, his DD Form 214 (Report of Separation from the Armed Forces of the United States), and a letter, dated 2 September 1954, which placed him of the temporary disability retired list (TDRL) effective 30 September 1954 in support of this application.

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's military records show that he was inducted into the Army of the United States on 24 April 1952.  However, on 30 September 1954, he was placed on the TDRL, and based on an entry in item 38 (Remarks) of his DD Form 214, the reason for his placement on the TDRL appears to have been tuberculosis.  

3.  In a letter, dated 20 September 1956, the Office of the Adjutant General, Washington, D.C. informed the Commanding General, Sixth Army, that the applicant was to be removed from the TDRL effective 30 September 1956.  On 
1 October 1956, the applicant became a member of the USAR.

4.  United States Army Reserve Personnel Center, St. Louis, Missouri Orders Number P-07-005465, dated 18 July 1991, retired the applicant and placed him on the Retired List effective 6 July 1991 in the rank and pay grade of master sergeant/E-8.  These orders also indicated that the applicant was authorized retired pay under Title 10, United States Code, Section 1331.  

5.  Although the applicant underwent disability processing prior to his placement on the TDRL in 1954, there is no record of the applicant appearing before any board within the Army Physical Disability Evaluation System (PDES) in conjunction with, or prior to his retirement.  There is also no evidence that he possessed a permanent physical profile in the last years leading up to his retirement which would have led to him being evaluated through the Army PDES.

6.  The applicant's NCO Evaluation Report for the period October 1989 through September 1990, which appears to be the last evaluation report completed on the applicant, essentially shows that applicant’s performance of duty, although not stellar, was commensurate with his rank until he retired.

7.  Although there is no evidence that the applicant underwent a medical examination in the months prior to his retirement, a physical examination was conducted on the applicant in November 1988 and, although this examination indicated that he had color blindness, mild high frequency hearing loss, and a refractive error, he was qualified for retention.  

8.  The applicant essentially stated that there is no documentation to show that he should have been retired due to permanent physical disability at the time of his retirement from the USAR.  He also stated, in effect, that before the Army involuntarily or voluntarily retires a reservist who completes 20 or more years of service, the unit should provide him/her with a complete physical examination, but that this was not the case for him.  He further stated that after he completed his 20 years of service, the Army automatically retired him, and that he just received his retirement papers at his home.  He continued by essentially stating that reservists generally are not totally knowledgeable of Army regulations and any Federal statutes regarding their entitlements, nor do they know the procedures and requirements.  He also stated, in effect, that reservists generally do not know what they should receive, what they should ask for, and what they should know.  Additionally, he stated that as the years passed by, his physical conditions which originated on active duty worsened.  He also essentially stated that he developed other physical disabilities while he was in the USAR, and aggravated previous physical disabilities as well. 

9.  The applicant provided a letter, dated 31 May 2006, from a doctor who has been seeing the applicant as his patient since 2003.  This doctor essentially stated that he is following the applicant for type 2 diabetes mellitus, hypertension, hyperlipidemia, and benign prostatic hypertrophy.  

10.  It should be noted that the applicant's military records contained a letter that he prepared on 14 January 2002, which was addressed to a military personnel management specialist at the United States Army Reserve Personnel Command in St. Louis, Missouri.  In his own words, the applicant stated, in pertinent part, 
"I am fully prepared for immediate assignment anywhere and any time."

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

12.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a Department of Veterans Affairs (DVA) rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

13.  Army Regulation 135-180 prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that, subsequent to 1 July 1949, qualifying service is granted for each year of service an individual earns 50 or more retirement points.

14.  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.  This regulation 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his non-regular retirement should be changed to a retirement due to permanent physical disability.

2.  The fact that the applicant has been receiving medical treatment since 2003 for type 2 diabetes mellitus, hypertension, hyperlipidemia, and benign prostatic hypertrophy is not questioned.  However, the letter from the applicant's doctor did not state when the applicant's aforementioned medical issues arose, and there is no evidence in the available records which shows that any of these medical issues were present during the applicant's military service.

3.  Although it does not appear that the applicant underwent a physical examination in the months prior to his retirement, the applicant's last physical examination conducted in November 1988 did not reveal any of the symptoms or diagnoses that his doctor has been treating him for since 2003.  Additionally, the evidence of record clearly shows that the applicant was  performing duties assigned to him that were commensurate with his rank or grade until he was scheduled for retirement, which creates a presumption that he was fit at the time of his retirement.  

4.  The fact that the applicant, in a 14 January 2002 letter, essentially stated that he was fully prepared for immediate assignment anywhere and any time was duly noted.  Although clearly the applicant was willingly to go where the Army needed him at the time, presumably as a patriotic response to the 11 September 2001 attacks, this letter now calls into question why he feels he should have been retired due to permanent physical disability back in 1991.  The fact that more than 10 years after he claims he should have been retired due to permanent physical disability, he essentially stated that he was fully prepared for an immediate assignment in a world-wide environment definitively leads away from any suggestion that he should have been retired in 1991 due to permanent physical disability.

5.  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.  In view of the foregoing, there is no basis for changing his non-regular retirement to a retirement due to permanent physical disability.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

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.




      ___        XXX                ___
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070008379



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508