RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20080002619 


	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:


M

Chairperson

M

Member

M

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, medical disability retirement and transfer to the Retired Reserve with entitlement to retired pay upon application. 

2.  The applicant states that he suffered an injury that was determined to be in the line of duty and that rendered him disqualified for continued service due to no fault of his own.  He was subsequently notified by his higher headquarters that he was determined to be medically disqualified for continued service in the U.S. Army Reserve and was accordingly discharged.  He also states that because of a medical condition at the time of his discharge, he should have qualified for medical retirement.  

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

	a.  memorandum, dated 23 May 2005, Notification of Medical Unfitness for Retention;

	b.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 26 January 2005; and

	c.  Headquarters, 81st Regional Readiness Command (RRC), Birmingham, Alabama, Orders 05-284-0004, dated 11 October 2005;

4.  On 16 April 2008, by fax, the applicant submitted the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 22 June 2005;

	b.  DA Form 3349 (Physical Profile), dated 10 December 2004; and

	c.  Standard Form (SF) 600 (Chronological Record of Medical Care), dated 16 February 2005.







CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army for a period of 3 years on 1 June 1983.  He completed basic combat and advanced individual 
training and was awarded military occupational specialty (MOS) 71M (Chapel 
Assistant).  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 2 April 1986.

2.  After a break in service and a 3-year term of enlistment in the U.S. Navy Reserve, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 19 December 2001, in the rank/grade of specialist (SPC)/E-4, in MOS 56M (Chaplain Assistant).  He was subsequently assigned to Headquarters and Headquarters Company, 641st Area Support Group, St. Petersburg, Florida.

3.  On 11 June 2002, the applicant was ordered to active duty as a member of his USAR unit in support of Operation Enduring Freedom.  He was ordered to report to Fort Stewart, Georgia, on 8 July 2002; however, there is no indication in the applicant's record that he entered and/or served on active duty, or that he was relieved from active duty.  Furthermore, the applicant's records do not contain a DD Form 214 for this period of call to active duty.

4.  On 22 September 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  However, his records do not indicate that he served in an imminent danger pay area during this period of call to active duty.

5.  On 10 December 2004, the applicant was issued a physical profile for recurrent superficial thrombophlebitis; generally, a condition in which there is both inflammation and a blood clot in either a superficial or a deep vein.

6.  On 22 December 2004, the applicant was ordered to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care.  He was assigned to the Medical Retention Center, Fort Bliss, Texas.

7.  The applicant's DA Form 2173, dated 26 January 2005, shows that on 8 November 2004, while stationed at Fort Bliss, Texas, the applicant began suffering from thrombophlebitis.  A formal line of duty investigation was not required and the injury was considered to have been incurred in the line of duty.




8.  The applicant's SF 600, dated 16 February 2005, shows that the applicant suffered three episodes of venous thrombosis to the right leg, left arm, and left foot in September, November, and December 2004.  

9.  On 28 April 2005, by memorandum, the 81st RRC Command Surgeon, Birmingham, Alabama, notified the applicant's unit commander that, after a review of the applicant's records, it was noted that the applicant did not meet retention requirements of Army Regulation 40-501 (Standards of Medical Fitness) due to his disease.  The memorandum further stated that Soldiers determined to be medically disqualified and pending separation for non-duty related impairment could request a Physical Evaluation Board (PEB) for the purpose of fitness determination.  However, those Soldiers were not eligible for disability benefits for non-duty related impairments.  The applicant's commander was further notified to inform the applicant and obtain his acknowledgement of notification of medical unfitness for retention and election of options selection memorandum.

10.  On 23 May 2005, by memorandum, Headquarters, 81st RRC, Birmingham, Alabama, notified the applicant that, as a result of his medical examination, he was determined to be medically disqualified for continued service in the USAR.  Along with the notification, the applicant was required to acknowledge the notification and elect one of the following options on the notification of medical unfitness for retention and election of options, in accordance with chapter 13 of Army Regulation 135-178 (Enlisted Administrative Separations):

	a.  request reassignment to the Retired Reserve in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), if he had completed 20 years of qualifying years; or

	b.  request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 (15 year retirement); or

	c.  request honorable discharge from the USAR; or

	d.  request an informal Physical Evaluation Board/Medical Evaluation Board to review his medical records for a final determination of his medical fitness for retention.




11.  There is no indication in the applicant's record that he responded to this notification.

12.  On 24 June 2005, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, published Orders 175-0020, honorably releasing the applicant from active duty, not by reason of disability, effective 22 June 2005.

13.  On 22 June 2005, the applicant was honorably released from active duty for completion of required active service.  The DD Form 214 he was issued at the time shows he completed 9 months and 1 day of creditable military service.

14.  On 11 October 2005, Headquarters, 81st RRC, Birmingham, Alabama, published Orders 05-284-00004, honorably discharging the applicant from the USAR, effective 11 November 2005, in accordance with Army Regulation      135-178.

15.  Army Regulation 135-178 prescribes the policies for the separation of enlisted Soldiers from the Reserve Components.  Chapter 15 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness.

16.  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.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

17.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a MEBD to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEBD determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose 



cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge narrative reasoning should be changed to medical disability retirement and that he was subsequently transferred to the Retired Reserve with entitlement to retired pay upon application, was carefully considered.  However, there is insufficient evidence to show he should have been medically discharged or retired by reason of physical disability. 

2.  The evidence of record confirms the applicant was found physically unfit for further service based on his medical condition.  Accordingly, he was notified of this finding and the options available to him.  However, the applicant's record is void of the acknowledgement of notification of medical unfitness for retention and election of options.  In the absence of PEB proceedings, and given the fact that the applicant has not completed the required number of years of qualifying service for normal or early non-regular retirement, it appears that the applicant elected to be honorably discharged from the USAR, and, accordingly, he was discharged on 22 June 2005.

3.  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 did not submit evidence that would satisfy this requirement.  Therefore, the applicant is not entitled to medical disability retirement and/or transfer to the Retired Reserve with entitlement to retired pay upon application.  He has not shown error, injustice, or inequity for the relief he is requesting.

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


ABCMR Record of Proceedings (cont)                                         AR20080002619



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508