RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 17 April 2008
DOCKET NUMBER: AR20070016975
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.
The following members, a quorum, were present:
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 record be corrected to show that instead of being honorably discharged on 3 July 2006, she was medically retired on that same date.
2. The applicant states, in effect, that she should have been medically retired from the United States Army Reserve (USAR) based on her diagnosis of multiple sclerosis (MS), for which she has received a 30 percent (%) disability rating from the Department of Veterans Affairs (VA).
3. The applicant provides the following documents in support of her application: Application for the Review of Discharge (DD Form 293); USAR Discharge Orders; and VA Medical Treatment Records and Lab Reports.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows that after having previously served on active duty in the Regular Army (RA), she enlisted in the USAR for a period of 1 year on 3 January 2003, in the rank of specialist (SPC).
2. A Report of Medical History (DA Form 2808), dated 16 December 2004, shows in Item 77 (Summary of Defects and Diagnosis), that the applicant was diagnosed with MS, with flare up symptoms that included severe headaches, back pain, leg numbness and weakness, and hand numbness. It also shows that at that time, she was without any symptoms due to the Betaseron injections she was required to have every other day.
3. The applicant's Official Military Personnel File (OMPF) contains a Medical Record (SF 507), dated 16 June 2005, which indicates a Physical Review Board determined that the applicant failed to meet medical retention standards under the provisions of Army Regulation 40-501, Paragraph 3-30E, based on her diagnosed MS condition.
4. On 17 October 2006, Headquarters, 96th Regional Readiness Command, issued Orders Number 06-290-00067, which directed the applicants discharge from the USAR on 3 July 2006.
5. Army Regulation 40-501 (Standards of Medical Fitness) prescribes medical fitness standards for enlistment, induction, appointment, retention, and separation, including retirement. Paragraph 3-30 provides guidance on neurological disorders, and identifies MS as a disqualifying condition.
6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.
7. Paragraph 3-4 of the disability regulation contains guidance on line of duty (LOD) decisions and it states under the laws governing the PDES, in pertinent part, that a Soldiers disability must have been incurred or aggravated while entitled to basic pay or as the proximate cause of performing active duty or inactive duty training to be eligible for disability processing through the PDES and/or to receive retirement and severance pay benefits.
8. Chapter 8 of the disability regulation contains the rules and policies for disability processing of Reserve Component (RC) Soldiers on active duty. It states, in pertinent part, that a RC Soldier will be referred for medical processing through the PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability. It further stipulates that in order for Soldiers of the
RC to be compensated for disabilities incurred while performing duty for
30 days or less, there must be a determination made by the PEB that the unfitting condition was the proximate result of performing duty. Proximate result establishes a casual relationship between the disability and the required military duty.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention she should have been medically retired from the USAR based on her MS diagnosis, for which she received a 30% disability rating from the VA, has been carefully considered. However, there is insufficient evidence to support this claim.
2. By regulation, in order to qualify for medical retirement, an RC Soldier must have suffered a medically disabling condition while in a qualifying duty status. The applicants record shows she was diagnosed with MS, and was ultimately found medically unfit for further service by the USAR Command Surgeon. As a result, she was appropriately discharged from the USAR based on this medical disqualification.
3. The applicant's record gives no indication that her unfitting medical condition was the proximate result of her performing duty while in a qualifying duty status. In addition, it appears her disability is properly being dealt with through the VA, which is the proper venue for this matter.
4. 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__x __ ___x__ __x__ 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.
_____x _
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20070016975
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA 22202-4508
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