RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070008934 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. David K. Haasenritter 

Chairperson

Mr. James Hastie

Member

Mr. Edward E. Montgomery

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 honorable discharge, by reason of physical disability, with severance pay, be changed to show that he was medically retired under the provisions of Title 10, United States Code (USC), Chapter 61.

2.  The applicant states, in effect, that his total years, both active and Reserve, were incorrectly applied given the appearance of less time at discharge and he should have at least 15 years of total service.  He states that his injuries were combat related but he was not rated for diabetes in which he was given a P-3 profile not to be deployed in February 1991.  He was sent to Somalia in July 1993, after given the profile, in accordance with Army Regulation 40-501, and his diabetes was unfitting for entry and retention. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and copies of additional supporting documents in support of his request. 

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 record shows he enlisted in the Regular Army on 21 June 1976.  He was trained as a Carpentry and Masonry specialist, in military occupational specialty (MOS), 51B.  He was promoted to pay grade E-5 on 1 February 1980.  He served until he was released from active duty on 20 June 1980.  He was transferred to the United Army Reserve (USAR) Control Group (Reinforcement).  



3.  The applicant's records contain a copy of NGB (National Guard Bureau) Form 23 (Army National Guard Retirement Credits Record) which shows that he had completed 5 years of qualifying service for retirement purposes during the period 7 October 1981 to 1 July 1987.  

4. The applicant's record shows he enlisted in the United States Army Reserve on 8 January 1990, in the pay grade of E-3.  He reenlisted in the Regular Army on 2 April 1990, as a Track Vehicle Mechanic/Repairer, in MOS, 63H.  He was promoted to sergeant (SGT/E-5) with an effective date of 1 December 1992.

5.  The applicant was issued a permanent profile of 311111, on 28 February 1991, due to diabetes mellitus.  His profile assignment limitations indicated that he must be assigned to non-isolated areas and must have immediate access to caloric intake (MRE [Meals Ready to Eat] or other operational rations).  His APFT (Army Physical Fitness Test) consisted of push-ups, sit-ups, and the two-mile run.

6.  On 18 March 1991, the applicant's case was considered by an MEB (Medical Evaluation Board).  The MEB diagnosed the applicant as having adult onset diabetes mellitus, non-insulin requiring, and mild hypercholesterolemia.  His ailment was ruled to have been incurred while entitled to base pay, did not exist prior to service (EPTS), and was not service aggravated.  The applicant indicated that he did desire to continue on active duty.  The findings and recommendations of the board were approved on 27 March 1991.  The applicant concurred on 5 April 1991.  The MEB recommended that the applicant be referred to a PEB (Physical Evaluation Board) but recommended he be retained on active duty.

7.  The applicant appeared before an informal PEB on 10 April 1991.  The PEB found the applicant physically fit for duty within the limitations of his profile and recommended that he be returned to duty as fit.  The applicant concurred with the results of the PEB on 17 April 1991.  

8.  On 19 August 1993, the applicant reenlisted for CONUS (Continental United States) Station of Choice, for 4 years with an established expiration of term of service (ETS) of 18 August 1997.

9.  Item 18, of his DD Form 214, shows he was deployed to Somalia from 30 August 1993 to 22 December 1993.



10.  On 29 October 1993, while serving in Somalia, the applicant's back and neck were injured by an explosion that occurred outside the building he was working in.  He was hit by debris and had glass lodged in his back.  His injury was considered in the line of duty (LOD).

11.  On 19 December 1996, a physician prepared a memorandum for the PEB Liaison Officer (PEBLO).  He indicated that the applicant did not meet the retention standards in accordance with Army Regulation 40-501 and would be processed by a medical board to determine fitness for further military service.  His probable disqualifying diagnose was chronic ulnar neuropathy, chronic mechanical back pain, and omission of diabetes.

12.  On 2 May 1997, the applicant was issued a permanent profile of 333111 due to chronic ulnar neuropathy, and chronic mechanical back pain, and diabetes
mellitus.  His profile assignment limitations were no pushup or situps and that he must be assigned to nonisolated areas and have immediate access to caloric intake (MRE’s or other operational rations).  He was not to participate in the APFT.  He could participate in the alternate aerobic conditioning exercise events of unlimited bicycling and swimming.

13.  On 2 May 1997, the applicant's case was considered by an MEB.  The MEB diagnosed the applicant as having chronic mechanical low back pain and chronic ulnar neuropathy, status post ulnar nerve transposition, and diabetes mellitus.  
The MEB determined that his ailments were ruled to have been incurred while he was entitled to base pay and did not EPTS.  He was referred to a PEB.  The reverse side of the MEB proceedings is unavailable for review.

14.  On 12 May 1997, the applicant appeared before an informal PEB.  He was diagnosed as having chronic mechanical low back pain, without muscle spasm or radiculopathy, and chronic ulnar neuropathy, status post ulnar nerve transposition, manifested by numbness and tingling with normal EMG (Electromyogram) and nerve conduction studies.  The PEB states that his injuries were incurred during armed conflict in Somalia, and his profile restrictions, precluded his performance of the duties of his grade and MOS.  The PEB stated that based on a review of the objective medical evidence of record, it found the applicant's medical and physical impairment prevented reasonable performance of duties required by his grade and MOS.  

15.  The PEB made a finding of in LOD not due to own misconduct.  The PEB found the applicant physically unfit and recommended that be separated with a combined rating of 20 percent with severance pay.  The PEB indicated that his diabetes mellitus was not unfitting and not rated.  The PEB indicated that his separation was based on a disability resulting from an injury received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LOD during a period of war as defined by law.  The reverse side of his PEB proceedings is unavailable for review.

16.  On 20 June 1997, the applicant was counseled by the Chief, Patient Administration Division (PAD) of the rights and advantages of remaining on an active duty status in the Army beyond his ETS for the purpose of completion of hospital care and/or physical disability evaluation under the provisions of Title 10, USC, Chapter 61.  He was fully advised that if he elected to be discharged or released from active duty, as scheduled, he would not, after such discharge or release from active duty, be eligible for separation or retirement for physical disability.  He elected to be retained beyond his scheduled ETS. 

17.  On 20 June 1997, the Chief, PAD, submitted a request for the applicant's retention on active duty beyond his ETS due to pending MEB proceedings.  On  21 July 1997, the applicant’s request was approved.

18.  The applicant was honorably discharged on 28 October 1997, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), disability with severance pay, in the pay grade of E-5.  His DD Form 214, dated 28 October 1997, shows he completed 7 years, 6 months, and 27 days of net active service this period, 4 years of total prior active service, and 2 years of total prior inactive service.  Item 18 (Remarks) of his DD Form 214 states that he was paid severance pay in the amount of $41,551.20  

19.  Information provided by the Defense Finance and Accounting Service (DFAS), on 18 December 2007, revealed that the applicant was paid disability severance pay based on 12 years of service.  The computation was based on $1731.20 x 2 x 12 = $41,551.20.

20.  Army Regulation 635-40 establishes the Army physical disability evaluation system and 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

21.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

22.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Total Army Personnel Command (PERSCOM) upon the final decision of the Physical Disability Agency (PDA).  It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USADPA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.

23.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was issued a permanent profile of 311111 due to diabetes mellitus.  His profile assignment limitations indicated that he must be assigned to non-isolated areas and must have immediate access to caloric intake (MRE [Meals Ready to Eat] or other operational rations).  

2.  He appeared before an MEB and was diagnosed as having adult onset diabetes mellitus, non-insulin requiring, and mild hypercholesterolemia.  His diagnosis was ruled to have been incurred while entitled to base pay, did not exist prior to service (EPTS), and was not service aggravated.  He desired to continue on active duty.  He was referred to a PEB.  The PEB found him physically fit for duty within the limitations of his profile and recommended that he be returned to duty as fit.  He concurred and was returned to duty.



3.  The evidence shows that the applicant reenlisted and was deployed to Somalia.  While in Somalia, his back and neck were injured due to an explosion that occurred outside the building he was working in.  He was hit by debris and had glass lodged in his back.  His injury was considered in the LOD.

4.  The applicant was issued a permanent profile of 333111 due to chronic ulnar neuropathy, and chronic mechanical back pain, and diabetes mellitus.  He appeared before an MEB which ruled his ailments to have been incurred while entitled to base pay and did not EPTS.  He was referred to a PEB.  

5.  The PEB made a finding of in LOD not due to own misconduct, found the applicant physically unfit, recommended his separation with a combined rating of 20 percent with severance pay.  

6.  The applicant was discharged under the provisions of Army Regulation     635-40, paragraph 4-24b(3), disability with severance pay.  He was paid disability severance pay in the amount of $41,551.20.  

7.  The evidence provided by DFAS revealed that he was paid disability severance base based on 12 years of total active service. 

8.  The applicant alleges that his total years, both active and Reserve, were incorrectly applied giving the appearance of less time at discharge and that he should have at least 15 years total service.  The evidence clearly shows that he completed 7 years, 6 months, and 27 days of net active service this period and 4 years of total prior active service, for a total of 11 years, 6 months, and 27 days of total active service.  He completed 2 years of total prior inactive service which was not calculated in his severance pay.  

9.  There is no evidence, and the applicant has provided none, to show that his total years, both active and Reserve, were incorrectly applied at the time of his discharge or to show that he should have a total of 15 years of total active service. 

10.  The applicant's injuries were determined to be combat related as indicated in his PEB proceeding, dated 12 May 1997.  However, the PEB indicated that his diagnosis of diabetes mellitius was not unfitting and not rated.  The reverse side of his PEB proceedings was unavailable for review.  It is apparent that the applicant concurred with the results and was honorably discharge.  


11.  The applicant contends that his diabetes was unfitting for entry and retention and he was deployed to Somalia, after having been given the profile.  However, he desired to remain on active duty and was found physically fit for duty within the limitations of his profile by a PEB.   

12.  The applicant has not provided any evidence to show that he should be entitled to a medical retirement under the provision of Title 10, USC, Chapter 61.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRH __  ___DKH_  __EM____  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.




_____David K. Haasenritter ____
          CHAIRPERSON




INDEX

CASE ID
AR20070008934
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080125
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19971028
DISCHARGE AUTHORITY
AR 635-40, para 4-24b(3)  . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.