IN THE CASE OF:	  

	BOARD DATE:	  24 July 2008

	DOCKET NUMBER:  AR20080005011 


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, in effect, an early retirement from the U.S. Army Reserve (USAR) based on a physical disability.  

2.  The applicant states that his Medical Evaluation Board (MEB) recommended that he be separated in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 40-3 (Medical, Dental, and Veterinary Care).  At the time of his separation, he was diagnosed as having Meniere’s disease [a disorder of the inner ear that can affect hearing and balance] and hypertension.  The assessment was disequilibrium with a history of Meniere’s disease according to Army Regulation 40-501, chapter 3, paragraph 3-9e.  The applicant quoted a portion of the Medical Board assessment which stated “The patient is not fit for retention on active duty and this Medical Board recommends separation for Medical Retirement.”  He continued with “Code P4” and “No assignment where loss of consciousness could cause danger”; however, these notations were not included in the referenced section.  

3.  The applicant provides a supplemental letter, dated 29 February 2008; his reply to notification of medical disqualification; his discharge orders from the USAR Ready, dated 30 March 1988; his notification of medical disqualification, dated 18 December 1987; his request for continuance on active duty, dated 28 August 1987; a response to his request for a waiver; a denial of his request for a waiver; his request for a delay for the appeal of the MEB proceedings; two MEB proceedings, dated 20 July 1987 and 1 September 1987; a letter, dated 3 September 1980 from the Veterans Administration (VA) [now known as the 
Department of Veterans Affairs]; medical documents; his Physical Profile Board Proceedings, dated 10 June 1982; a letter from the Medical Department Activity, Fort Lee, Virginia, dated 19 August 1982; and his Medical Condition - Physical Profile Record, dated 22 June 1976.  

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 appointed as a Reserve commissioned officer on 14 May 1971.  He was ordered to active duty on 7 July 1971.

3.  His personnel records contain a DA Form 3349 (Medical Condition - Physical Profile Record), dated 22 June 1976, which shows he was placed on a temporary physical profile for vestibular (balance function of the inner ear) neuropathy with numerical designators of 311121.  

4.  The applicant was honorably released from active duty on 7 August 1978.  On the following date, he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  

5.  On 3 September 1980, the VA informed the applicant that his claim for service-connection for a bilateral knee condition and hearing loss with tinnitus, secondary to Meniere’s syndrome had been carefully considered based upon all the evidence of record.  Service-connection for bilateral knee condition was not granted; service-connection for Meniere’s syndrome was evaluated at zero percent; service-connection for tinnitus was denied; and service-connection for hypertension was increased to 10 percent.

6.  The applicant was placed on a permanent physical profile on 10 June 1982 for a hiatal hernia and dizziness/lightheadedness (Meniere’s disease) with numerical designators of 311221.

7.  He was promoted to the rank of major on 6 June 1984.

8.  In a 25 June 1987 Medical Record Report, the applicant was psychiatrically cleared for worldwide military duty and he was recommended for a P4 profile.  

9.  The applicant was evaluated by an MEB on 20 July 1987.  The MEB proceedings indicated he did not present views in his own behalf.  He was diagnosed as having the following medical conditions:  (1) Psychophysiologic symptoms; (2) Reflux esophagitis; (3) Irritable bowel syndrome; (4) Post-traumatic degenerative joint disease of the right knee with normal range of motion and strength; (5) Hypertension (mild and controlled); (6) Mild bilateral high frequency hearing loss; and (7) Meniere’s disease.  The MEB proceedings indicated that the applicant was not qualified for duty under Army Regulation 
40-501, chapter 3, chapter 5, paragraph 3-9e.  He was referred to the Army Personnel Center for retention determination.  His duty limitations were listed as “no assignment where sudden loss of consciousness would be dangerous to self or others.”  

10.  On 28 August 1987, the applicant did not agree with the MEB findings and recommendation and he submitted an appeal.  He referenced several errors in Blocks 12, 13, 14, 23, and 30 on the MEB proceedings.  The applicant alleged that he was not given the opportunity to appear before the board in person nor was he given the opportunity to submit a written statement until after the MEB proceedings were completed.  He stated that the entry in Block 13 should include a discussion of the combined effect of all of the impairments and should list all diagnoses in descending order of significance.  He stated the regulation required a complete listing of the patient’s medical status.  He also stated the dates and entries in Blocks 13b and 13c were not in accordance with the facts and findings stated by the VA.  

11.  The applicant stated that Block 14 did not include a recommendation.  He indicated that a board member could not be the approving authority used in Block 23.  He further stated that the duty limitations listed in Block 30 were the same functional statement and limitations listed in his current physical profile.  His diagnoses of Meniere’s disease and the degenerative joint disease were found by the VA and not by three Army hospitals.  

12.  On 30 July 1987, the applicant was placed on permanent physical profile for vertigo/dizziness with numerical designators of 411121.  His assignment limitations were indicated as “no assignment where sudden loss of consciousness would be dangerous to self or others.”  


13.  The applicant’s Medical Record Report, dated 25 June 1987, shows he was diagnosed with disequilibrium with a history of Meniere’s disease according to Army Regulation 40-501, chapter 3, section 5, paragraph 3-9e.  The examining physician indicated the applicant was not fit for retention on active duty and the MEB recommended separation for medical retirement.  

14.  On 28 August 1987, the applicant submitted a request for continuance on active duty.  

15.  On 1 September 1987, a revised DA Form 3947 (MEB Proceedings) was prepared to amend Blocks 12, 13, and 23 on the applicant’s MEB proceedings as requested in his appeal.  Blocks 14 and 30 were not amended.  

16.  On 6 October 1987, the Command Surgeon, U.S. Army Reserve Personnel Center, St. Louis, Missouri, denied the applicant’s request for a medical waiver for retention in the USAR.  The Command Surgeon recommended that the applicant be referred to a physical evaluation board (PEB).  

17.  In an 18 December 1987 memorandum, the applicant was notified that he did not meet the standards for retention in the USAR and/or entry on active duty by reason of Meniere’s disease, hypertension, post-traumatic degenerative joint disease of right knee, reflux esophagitis, irritable bowel syndrome, high frequency hearing loss, and psychophysiologic symptoms.  He was advised to complete the option form and to elect either discharge from the Army Reserve, transfer to the Retired Reserve, or to request a waiver for retention.  He was also advised that failure to reply by the suspense date (17 January 1988) would result in his voluntary discharge. 

18.  On an unknown date, the applicant replied to the notification of medical disqualification and elected to be transferred to the Retired Reserve.  

19.  Department of the Army, U.S. Army Reserve Personnel Center Orders Number D-03-900581, dated 30 March 1988, honorably discharged the applicant from the USAR Ready Reserve on 30 March 1988.

20.  His Chronological Statement of Retirement Points shows he completed 8 years of qualifying service for retirement at age 60.  It shows he earned annual training active duty points only during 4 of the 8 years he was in the USAR Control Group (Reinforcement) and no inactive duty training points.  


21.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It 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.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criterion 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.  

22.  Title 10, United States Code, section 12731a was the temporary special retirement qualification authority.  A revision dated 5 October 1994 provided that, during the period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who had completed at least 15, and less than 20, years of qualifying service and who no longer met the qualifications for membership in the Selected Reserve solely because the member was unfit because of physical disability, and upon the request of the member, could be transferred to the 
Retired Reserve and treated as having met the service requirements and be provided with the notification required if he had completed at least 15 and less than 20 years of service.

23.  Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a VA disability pension.  Under the law prior to 2004, a veteran could only be compensated once for a disability.  If a veteran was receiving a VA disability pension and the Board corrected the records to show the veteran was retired for physical unfitness, the veteran would have had to have chosen between the VA pension and military retirement.  The new law does not apply to disability retirees with less than 20 years of service and retirees who have combined their military and civil service time to qualify for a civil service retirement.  It does apply to those retired under TERA (Temporary Early Retirement Authority).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was placed on a temporary physical profile for vestibular neuropathy in June 1976.  He was released from active duty on 7 August 1978.


2.  An MEB evaluated the applicant’s medical records in July 1987.  It was determined that he did not meet the standards for retention in the USAR or entry on active duty under Army Regulations 40-501, paragraph 3-14c for Meniere’s disease, hypertension, post-traumatic degenerative joint disease of right knee, reflux esophagotis, irritable bowel syndrome, high frequency hearing loss, and psychophysiologic symptoms.  

3.  It appears that the applicant’s Meniere’s disease was probably incurred while he was on active duty; however, there is no evidence to show that it rendered him unfit while on active duty.  The evidence of record shows the applicant was placed on a permanent physical profile in June 1982.  However, he was sufficiently fit to have accepted his promotion to major in June 1984.  

4.  The applicant’s Statement of Retirement Points shows he performed very little active duty while in the USAR Control Group (Reinforcement) and there is no evidence to show he performed inactive duty training.  There is insufficient evidence to show he met the line of duty criteria that could have made him eligible for a physical disability separation.  

5.  The evidence of record shows the applicant requested to be transferred to the Retired Reserve; however, it appears his request for transfer was not received prior to his being discharged from the USAR.

6.  The law provided the TERA for the period 23 October 1992 through 31 December 2001.  Unfortunately, the applicant was determined to be medically unfit prior to 23 October 1992 and it does not appear he was in the Selected Reserve.  Therefore, he does not qualify for an early retirement based on a physical disability.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ____xx__  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.



	________xxxxx__________
      	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)                                         AR20080005011



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ABCMR Record of Proceedings (cont)                                         AR20080005011



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