IN THE CASE OF:	  

	BOARD DATE:	  24 June 2008

	DOCKET NUMBER:  AR20070019012 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records as follows:

	a.  medical retirement instead of honorable discharge, which would, in effect, entitle him to Department of Veterans Affairs (VA) benefits and disability;

	b.  correction of his Chronological Statement of Retired Points to show he has 16 qualifying years for retirement instead of 15; and

	c.  an opportunity to reenter the U.S. Army Reserve (USAR) and complete the remainder of his service to reach 20 qualifying years for non-regular retirement. 

2.  The applicant states that he was retained in the service for two enlistments after being identified as having Type I Insulin-dependent Diabetes, as shown on his medical records.  He further questions the fact that he was barred from reenlistment a third time and denied VA disability benefits although there was no indication of any negative performance and that he was willing and able to complete the required 20 years for non-regular retirement.  

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

	a.  Self-authored statement, dated 31 December 2007.

	
	b.  USAR Discharge Orders, dated 20 August 1999.

	c.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 3 June 1983.

	d.  Memorandum, dated 2 April 1997, Office of the Inspector General, 81st Regional Readiness Command (RRC), Fort Jackson, South Carolina, response concerning medical discharge.

	e.  Doctor Statement, dated 3 March 1998.

	f.  Memorandum, dated 23 February 1997, Headquarters, 81st RRC, Birmingham, Alabama, Medical Status.

	g.  Letter of Recommendation, dated 6 March 1998.

	h.  Endorsement, dated 8 February 1998, 332nd Medical Brigade, Nashville, Tennessee, Review of Medical Records.

	i.  Memorandum, dated 18 February 1998, 73rd Medical Hospital, St. Petersburg, Florida, Review of Medical Records.

	j.  DA Form 4836 (Oath of Extension of Enlistment or Reenlistment).

	k.  Memorandum, dated 25 April 1998, 73rd Field Hospital, Discharge due to Medical Disqualification for Retention.

	l.  Memorandum, dated 8 November 1998, 73rd Field Hospital, St. Petersburg, Florida, Retention.

	m.  Standard Form 93 (Report of Medical History), dated 23 February 1992 and 22 February 1997.

	n.  DA Form 3349 (Physical Profile) (Temporary), dated 11 June 1998.

	o.  Standard Form 88 (Report of Medical Examination), dated 23 February 1992 and 22 February 1997.

	p.  Copies of Drivers License, Social Security Card, Fire and Rescue District, and Emergency Medical Technician Certification Card.



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 records show that he enlisted in the USAR for a period of 6 years on 14 February 1983 and subsequently entered active duty for training (IDT) on 25 February 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  He was honorably released from IDT and reverted back to his USAR status on 3 June 1983.  

3.  The applicant's records further show that he was initially assigned to Company D, 330th Engineer Battalion, Worcester, Pennsylvania, and that he executed a 6-year reenlistment in the USAR in the rank/grade of specialist four (SP4)/E-4 on 27 January 1986.  He subsequently transferred to the 320th Military Police Company, St. Petersburg, Florida, on 30 October 1986.

4.  On 23 February 1992, the applicant underwent a periodic medical examination where he was diagnosed with Type I Insulin-dependent Diabetes.  However, the examining physician remarked on the applicant's Report of Medical Examination that the applicant was qualified for retention.  

5.  On 9 July 1996, by memorandum, the applicant's immediate commander requested the applicant's health records be reviewed to determine if the applicant was healthy enough to be administered the Army physical readiness test (APFT) and retention in the USAR, given his health condition at the time.

6.  On 22 February 1997, the applicant underwent a periodic medical examination where the examining physician noted that the applicant was diagnosed with Type I Insulin-dependent Diabetes.  The physician also placed the number 3 under the "P" (physical capacity or stamina) portion of the applicant's PULHES, indicating a permanent medical condition. 
7.  On 23 February 1997, by memorandum, the Surgeon of the 81st RRC, Birmingham, Alabama, notified the applicant's immediate commander that he reviewed the applicant's medical records and determined that the applicant did not have a medical condition upon enlistment.  He was diagnosed with diabetes mellitus in 1986 and at the time required insulin therapy for control.  The Surgeon also remarked that the applicant did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  The Surgeon recommended the applicant's separation in accordance with Army Regulation 135-178 (Enlisted Administrative Separations); however, he noted that the applicant could request continuance in active USAR status in accordance with Army Regulation 40-501.

8.  On 8 December 1997, by memorandum addressed to the 332nd Medical Brigade Surgeon, Nashville, Tennessee, the Unit Administrator, 73rd Field Hospital, St. Petersburg, Florida, requested clarification regarding the applicant's retention in or separation from the USAR, given the applicant's medical condition.

9.  On 11 January 1998, the applicant was issued a temporary physical profile.  The profiling officer cited the applicant's diabetes mellitus and breathing difficulties.

10.  On 8 February 1998, by memorandum, the 332nd Medical Brigade Adjutant notified the 73rd Field Hospital Commander that the applicant's medical records were incomplete and that upon receipt of further medical documents, the applicant should be referred to a Medical Evaluation Board (MEB).  He further noted that if the applicant's expiration term of service (ETS) date was prior to the MEB convening date, the applicant would be extended for a period of 6 months.  

11.  On 3 March 1998, the applicant was examined at Suncoast Medical Clinic, St. Petersburg, Florida.  The civilian doctor indicated that the applicant had a history of diabetes mellitus and that at the time, his diabetic condition was controlled and within the normal limits.

12.  On 9 March 1998, the applicant's enlistment was extended for a period of 3 months.

13.  On 15 March 1998, by memorandum addressed to the 73rd Field Hospital Commander, the 332nd Medical Brigade Adjutant recommended the applicant's separation in accordance with Army Regulation 135-178.




14.  On 25 April 1998, by memorandum, the 73rd Field Hospital Commander notified the applicant that after a review of his medical records, he was found to have a medical condition which rendered him medically disqualified for further retention in the Army.  The applicant acknowledged receipt of this memorandum and requested consideration for a waiver of his disqualification.

15.  On 15 May 1998, by memorandum, the 73rd Field Hospital Unit Administrator notified the Commander, 332nd Medical Brigade, that the applicant's term of service was extended by a period of 6 months while waiver of his medical disqualification was being considered.

16.  On 8 November 1998, the applicant's term of service was extended, again, by a period of 6 months, pending the scheduling of an MEB.

17.  On 19 April 1999, the applicant's immediate commander submitted an evaluation statement in response to the applicant's request for continuation in the USAR.  The immediate commander stated that despite the applicant's performance to standards and positive qualities, his attendance at annual training events had the potential to add additional logistical challenges that non-medical units would have difficulty managing.  He further added that the applicant had selective enthusiasm and that there were many responsibilities he did not follow through on.  The immediate commander concluded that he did not support the applicant's retention in the USAR.

18.  On 5 May 1999, by memorandum, the applicant's immediate commander notified the applicant that he was initiating separation action against him for medical unfitness.  He further recommended an honorable discharge.

19.  On 23 June 1999, by memorandum, the applicant's immediate commander requested the applicant's separation from the USAR, in accordance with paragraph 4-7 of Army Regulation 135-178.  He further recommended an honorable discharge.

20.  On 28 June 1999, the separation authority approved the request for separation.  

21.  On 20 August 199, Headquarters, 81st RRC, Birmingham, Alabama, published Orders 232-22, honorably discharging the applicant from the USAR, effective 20 August 199, in accordance with chapter 11 (Expiration of service Obligations) of Army Regulation 135-178.  


22.  In his statement, dated 31 December 2007, the applicant stated that the USAR allowed him to serve for a period of 12 years despite knowing of his medical condition; yet, denied him his last reenlistment which would, in effect, have carried him to 20 qualifying years for non-regular retirement.

23.  The applicant's Chronological Statement of Retirement Points shows he completed 15 years of qualifying service for non-regular retirement. 

24.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. 

	a.  Chapter 4 of this regulation establishes policy and prescribes procedures for separation of enlisted Soldiers for the convenience of the government.  Paragraph 4-7 covers discharge of Soldiers who did not meet the medical fitness standards.  It states, in pertinent part that separation authorities are authorized to discharge soldiers who are not medically qualified; 

	b.  Chapter 11 of this regulation establishes policy and prescribes procedures for separating members for expiration of service obligation.  It states, in pertinent part that on expiration of term of enlistment, reenlistment, or period of statutorily obligated service, the Soldier will be discharged by the appropriate separation authority.  No Soldier may be held in service beyond the normal expiration of term of service unless expiration of term of service is extended by law.  A Soldier being discharged on expiration of enlistment, reenlistment, or fulfillment of service obligation will be awarded a character of service of honorable, unless an uncharacterized description of service is required by law; 

	c.  Chapter 12 of this regulation establishes policy and prescribes procedures for separating members for other reasons.  Paragraph 12-1 (Medically unfit for retention), provides that separation will be accomplished by separation authorities when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness (Army Regulation  40-501 or National Guard Regulation 40-3/National Guard Regulation 40-501) unless the Soldier requests and is granted a waiver under Army Regulation     40-501 or National Guard Regulation 40-501, as applicable; or eligible for transfer to the Retired Reserve (Army Regulation 140-10).  Soldiers separated under this chapter will be awarded a character of service of honorable or under honorable conditions, unless an uncharacterized description of service is required.



25.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

26.  Profiles may be either temporary or permanent.  A temporary profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity. Soldiers on active duty and RC Soldiers not on active duty with a temporary profile will be medically evaluated at least once every 3 months at which time the profile may be extended for a maximum of 6 months from the initial profile start date by the profiling officer.  A profile is considered permanent unless a modifier of "T" (temporary) is added.  If the profile is permanent, the profiling officer must assess if the Soldier meets retention standards in accordance with chapter 3, AR 40-501.  Those Soldiers on active duty who do not meet retention standards must be referred to an MEB as per chapter 3.  A permanent profile may only be awarded or changed by the appropriate profiling officer.

27.  In August 1998, the Office of the Chief, Army Reserve (OCAR) established a process to refer Soldiers of the Reserve Component who are pending separation for medical disqualification into the Disability Evaluation System.  The process was designed to give the soldier with a non-duty related impairment the option of requesting a PEB solely for the purpose of fitness determination but not a determination of eligibility for disability benefits.  OCAR noted that it is Department of Defense policy that Reserve Component members pending 
separation for medical disqualification are entitled to a fitness determination by each Service's PEB when requested by the soldier.  These provisions were later incorporated into Army Regulation 40-501 as noted above.

28.  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 chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

29.  Paragraph 3-1 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.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

30.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states 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.  The regulation also states 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. 

31.  Title 10, U.S. Code, Section 12731a is the temporary special retirement qualification authority.  This provision of law permits that, upon request, a member of the Selected Reserve may be transferred to the Retired Reserve if he or she:  (1)  has completed at least 15, but less than 20, years of qualifying service and (2) no longer meets  the qualifications for membership in the Selected Reserve solely because of unfitness due to physical disability.  This 

provision does not apply to any member whose disability resulted from intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention or was incurred during a period of unauthorized absence.  Title 10 was amended by the 106th Congress to extend the period of eligibility for this special retirement benefit from 1 October 1991 through 30 September 2001.

32.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

33.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically retired instead of honorably discharged or in the alternate that he should be allowed to reenter the USAR so he may complete the remainder of his service to reach 20 qualifying years for non-regular retirement.  He also contends that he has 16 qualifying years for non-regular retirement instead of 15. 

2.  The evidence of record shows that the applicant was diagnosed as having a history of diabetes mellitus.  His medical condition rendered him medically disqualified for further retention in the USAR.  Accordingly, he was notified that his medical disqualification would lead to a discharge.  He requested a waiver of 

his medical disqualification; however, his waiver was not approved.  Throughout this process, the applicant's term of service was extended on two separate occasions.  Once he was determined medically disqualified for further retention, the applicant was honorably discharged on 20 August 1999, due to expiration of his term of service.  

3.  The specific condition for which the applicant was found to be medically disqualified for retention is known from the available evidence.  It is also noted that the Command Surgeon of the 81st RRC stated the applicant should be counseled as to his right to an MEB solely for a fit for duty determination.  This is an indication that the Command Surgeon did not feel the applicant's condition was the proximate result of performing duty.

4.  There is no evidence in the applicant's records and the applicant has not submitted any evidence that his medical condition warranted his referral to a PEB or that his records were reviewed by a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

5.  With respect to the applicant's entitlement to VA benefits, the applicant’s condition of diabetes mellitus is unfortunate; however, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local/regional VA representative to inquire about eligibility for and/or entitlements to VA benefits. The VA is a separate entity from the ABCMR and has its own application and appeal process.  The ABCMR has no jurisdiction over that agency.

6.  With respect to the applicant's correction of his Chronological Statement of Retired Points to show he has 16 qualifying years for retirement instead of 15; there is no evidence in the available record and the applicant did not provide any substantiating evidence that shows his qualifying years for retirement are incorrect or that he attempted to resolve any discrepancy concerning the correct number of years through the proper channels, but was denied.

7.  With respect to the applicant's contention to be given an opportunity to reenter the USAR and complete the remainder of his service to reach 20 qualifying years for non-regular retirement, again, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local recruiter to inquire about eligibility for reentering any branch of the Armed Forces.

8.  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 did not submit evidence that would satisfy that requirement.
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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070019012



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ABCMR Record of Proceedings (cont)                                         AR20070019012



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