RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20070017933 


	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 honorable discharge from the Army National Guard be changed to a medical retirement.  He also requests, in effect, a line of duty (LOD) investigation.  

2.  The applicant states, in effect, that he was diagnosed with COPD [Chronic Obstructive Pulmonary Disease] at the age of 25 after he had returned from Operation Desert Storm.  He states he was activated to go to Operation Joint Endeavor in 1996 and he was placed on an airplane with 8 to 12 inhalers.  He alleges that his medical records from his tours could not be found when he came home and there should have been a LOD investigation.  

3.  The applicant provides a letter of support, dated 24 January 2006, from his former Platoon Sergeant and his letter, dated 15 January 2006, to a Chief Warrant Officer.  

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 was born on 30 May 1965.  He enlisted in the Alabama Army National Guard on 18 August 1983.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 64C (motor transport operator).  He was later reclassified to MOS 63B (light wheeled vehicle mechanic).

3.  The applicant served in Saudi Arabia from 18 September 1990 to 4 May 1991 in support of Operation Desert Shield/Desert Storm.

4.  The applicant was ordered to active duty on 17 June 1996 in support of Operation Joint Endeavor.  He served in Hungary from 17 July 1996 to 5 February 1997.  On 20 February 1997, the applicant was released from active duty and returned to his Army National Guard unit.  

5.  A Medical Duty Review Board (MDRB) reviewed the applicant’s medical records on 16 July 2002 under the provisions of National Guard Regulation 
40-501, chapter 17-3.  The MDRB recommended that the applicant be separated from the Alabama Army National Guard by reason of being medically unfit for retention in accordance with Army Regulation 40-501, paragraph 3-41e(1)(2)(3).  The MDRB proceedings indicated that the applicant had 18 years of creditable service and was eligible for an early medical retirement.  The applicant concurred with the finding of the MDRB.  He requested, through his unit of assignment, that all of his records pertaining to his medical condition, to include his medical and dental records, be submitted to the Military Personnel Office, Office of the Adjutant General, for immediate action.  He also requested that he be transferred to the Retired Reserve.  

6.  There are no medical documents available in the applicant’s service personnel records.  

7.  Alabama Army National Guard, State Military Department, Personnel Service Branch, Montgomery, Alabama Orders 214-009, dated 2 August 2002, discharged the applicant from the Army National Guard under the provisions of National Guard Regulation 600-200, paragraph 8-26j(1) by reason of being found medically unfit for retention with an effective date of 1 August 2002.  On the following date, he was transferred to the Retired Reserve.  The additional instructions on the applicant’s discharge orders state, in part, “Soldier is notified of his/her early qualification for eligibility to receive non-regular retired pay upon attaining age 60.”

8.  The applicant’s Army National Guard Retirement Points History Statement shows he completed 18 years, 11 months and 14 days of qualifying service for retired pay at age 60.  

9.  The applicant provided a letter from his former Platoon Sergeant who served with him during Operation Joint Endeavor.  The former Platoon Sergeant’s team was set up at Tarsar Main Airport in Hungary and the applicant was one of his squad leaders.  He attests that the applicant had difficulty breathing during his time in Hungary.  He states that the applicant’s health did not get any better.  He lost weight, had a sore throat, and had a hard time breathing.  The former Platoon Sergeant further states that these conditions continued until they left Hungary and he has had problems off and on since that time.  

10.  National Guard Regulation 600-200, paragraph 8-26 governs the discharge from the State Army National Guard and/or as a Reserve of the Army.  Subparagraph 8-26j(1) states Soldiers are discharged from the State ARNG or from the Reserve of the Army when a Soldier is determined to be medically unfit for retention per Army Regulation 40-501, chapter 3.  Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501 and National Guard Regulation 40-501.

11.  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.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  

12.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that Reserve Component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a Physical Evaluation Board (PEB) for a determination of fitness.  The process was designed to give the Soldier with a nonduty related impairment the option of requesting a PEB solely for the purpose of fitness determination but not a determination of eligibility for disability benefits.  

DISCUSSION AND CONCLUSIONS:

1.  In July 2002, a MDRB found the applicant medically unfit for military service for an unknown condition.  The MDRB would have considered medical conditions that were nonduty related.  It was recommended that he be separated from the service.  The applicant concurred with the MDRB finding and its recommendation that he be separated from the Army National Guard due to his medical condition. 

2.  The applicant’s medical documents are not available.  Regrettably, after the passage of 10 to 15 years or more, there is insufficient evidence on which to change his discharge to a medical retirement (i.e. to show that his medical conditions were duty related).  

3.  For the same reason, there is insufficient evidence on which to grant the applicant’s request for a LOD.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JM______  CD______  QS______  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.




                        JM__________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070017933


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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