RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070012469 


	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

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 correction of his records to show that he was medically retired instead of transferred to the Retired Reserve.

2.  The applicant states that he was injured during his service in Afghanistan and that his injury was determined to be in the “Line of Duty” as determined by a Medical Evaluation Board (MEB) at Fort Bragg, North Carolina, and Fort Lewis, Washington.

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DA Form 2173 (Statement of Medical Evaluation and Duty Status), dated 16 March 2004 and 13 May 2004;

	b.  Memorandum, dated 3 April 2006, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, Subject: Informal Line of Duty Determination;

	c.  Headquarters, 89th Regional Readiness Command, Wichita, Kansas, Orders 06-214-00184, dated 2 August 2006; and

	d.  Headquarters, 89th Regional Readiness Command, Wichita, Kansas, Amendment Orders 06-256-00003, dated 13 September 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the US Army Reserve (USAR) Delayed Entry Program (DEP) for 6 years on 6 January 1975.  On 7 February 1975, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Policeman).  He was honorably released from active duty on 31 January 1978.

2.  After a short break in service, the applicant enlisted in the Regular Army on 25 October 1979 for a period of 4 years.  He subsequently executed a series of reenlistments in the Regular Army on 30 January 1984 for a period of 3 years and on 31 March 1987 for a period of 6 years.  He was honorably discharged on 5 April 1992 in accordance with chapter 16 of Army Regulation 635-200 (Personnel Separations) under the Voluntary Separation Incentive (VSI) program 
of the Fiscal Year 1992 (FY92) Enlisted Voluntary Early Transition Program.  The DD Form 214 he was issued shows he completed a total of 15 years, 5 months, and 5 days of active military service.

3.  The applicant’s records further show that he enlisted in the USAR on 6 April 1992 for a period of 3 years and reenlisted in the USAR on 7 April 1995 for a period of 6 years.  His expiration of term of service was 6 April 2001.  

4.  On 4 February 2001, he enlisted in the Oklahoma Army National Guard (OKARNG) for a period of 3 years.

5.  On 21 December 2001, he enlisted in the USAR for a period of 3 years.

6.  On 7 July 2003, the applicant was ordered to active duty in support of Operation Enduring Freedom.  He served in Afghanistan during the period 2 August 2003 through 5 May 2004.  He was honorably released from active duty on 20 June 2004.  The DD Form 214 he was issued on 20 June 2004 shows he had completed a total of 17 years, 3 months, and 21 days of active service and 12 years, 1 month, and 23 days of inactive service.   

7.  The applicant’s DA Form 2173, dated 16 March 2004, shows that the applicant was examined on 14 March 2004 at Fort Bragg, North Carolina.  The military doctor remarked in Item 30 (Details of Accident-Remarks) “Soldier did not have diabetes prior to mobilization to Afghanistan; upon demobilization, he was determined to have diabetes.  Deployment is thought to have advanced the diabetes."  This form further shows that the applicant's illness/injury was considered to have been incurred "IN LINE OF DUTY."

8.  The applicant's DA Form 2173, dated 13 May 2004, shows that the applicant was examined on several dates.  Item 15 (Details of Accident or History of Disease) of this form shows the entry "Soldier claims bilateral knee pain, Degenerative Joint Disease (DJD)."  The military doctor remarked in Item 30 "Due to DJD, the use/wearing of Load Bearing Equipment (LBE) and body armor, [illegible] accelerates the degeneration in both knees and ankles."  This form further shows that the applicant's illness/injury was considered to have been incurred "IN LINE OF DUTY."

9.  The facts and circumstances surrounding his injury/illness in Afghanistan are not available for review with this case.  Additionally, the applicant's medical records are not available for review with this case.  There are no MEB-related documents available to the Board for review.

10.  On 3 April 2006, by memorandum, Headquarters, XVII Airborne Corps, Fort Bragg, North Carolina, informed the Commander, Human Resources Command, St. Louis, Missouri, that the applicant's Informal Line of Duty investigation determined that his injury/illness was determined to be "IN THE LINE OF DUTY."

11.  On 2 August 2006, Headquarters, 89th Regional Readiness Command published Orders 06-214-00184, reassigning the applicant to the Retired Reserve, by reason of medical disqualification, in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers).  The Orders also stated that the "Soldier is authorized early retirement under Title 10 USC, Section 12731B."

12.  On 13 September 2006, Headquarters, 89th Regional Readiness Command published Orders 06-256-00003, amending Orders 06-214-00184, dated 2 August 2004, to read "Soldier erroneously authorized early retirement under Title 10 USC, Section 12731B.  Soldier already has over 21 years of qualifying service."

13.  The applicant's Chronological Statement of Retirement Points, dated 28 December 2007, shows he was credited with 22 years and 3 days of qualifying service for retirement.  

14.  Title 10, USC, section 12731b, specifies that a member of the Selected Reserve who has completed at least 15 years but less than 20 years of service may be entitled to temporary special retirement qualification when they no longer meet the qualifications for membership in the Selected Reserve solely because the member is unfit because of a physical disability, not due to misconduct.

15.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, USC by adding section 12371b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b states that a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability pay, for the purpose of section 12371 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 years and less than 20 years of service.




16.  Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer U.S. Army Reserve (USAR) Soldiers. It states, in pertinent part, that assignment to the Retired Reserve is authorized (and eligible Soldiers must request transfer) for Soldiers who are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty or for Soldiers who are medically disqualified for active duty from a service connected disability.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 Army Regulation 40-501 (Standards of Physical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

18.  Paragraph 3-1 of Army Regulation 635-40 provides that the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

19.  Paragraph 3-2b(2) further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have received a medical retirement from active duty due to injuries he received in Afghanistan.

2.  There is no evidence in the applicant's records and the applicant has not submitted any evidence that he had a medical condition which would have warranted his referral to the Physical Disability Evaluation System (PDES); therefore, he was not considered by a Medical Evaluation Board (MEB).  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jev___  __tmr___  __jcr___  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.



							James E. Vick
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.