IN THE CASE OF:
BOARD DATE: 13 August 2008
DOCKET NUMBER: AR20080008398
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, that Headquarters, 63rd Regional Readiness Command Orders 05-164-00004, dated 13 June 2005 be corrected by removing the notation MED DISQUALIFIED FOR AD AS A RESULT OF SVC CONNECTED DSBLY [Medically Disqualified for Active Duty as a Result of Service-Connected Disability].
2. The applicant states his transfer to the Retired Reserve was voluntary, not due to a medical disqualification. He believes that his last commander had this entry made for revenge and as a means of preventing him from possibly returning to serve at a later date.
3. The applicant provides copies of his transfer order and an e-mail from Human Resources Command St. Louis (HRC-STL), Development Directorate.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army and entered active duty on
28 June 1978. He was honorably released from active duty and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) on 24 April 1982.
3. The applicant reenlisted in the USAR on 5 August 1989 and transferred to the California Army National Guard (CAARNG) on 23 June 1995. He was commissioned a warrant officer (WO1) in the CAARNG and received Federal Recognition on 15 February 1996 with promotion to chief warrant officer two (CW2) on 5 April 1998.
4. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows the applicant suffered injury to his left knee on 9 December 2003. He was found fit for duty and the injury was in the line of duty.
5. The applicant's iPERMS (interactive Personnel Electronic Records Management System) file shows that his last physical was conducted on 1 April 2002. He is shown to have no limitations or disqualifications at that time.
6. The applicant served on active duty from 1 November 2004 through 20 March 2005. Headquarters, U. S. Army Garrison, Fort George G. Mead, Maryland Orders 112-0001 directing this released from active duty shows his separation was not by reason of a physical disability.
7. Headquarters, 63rd Regional Readiness Command Orders 05-134-00004, dated 13 June 2005, reassigned the applicant to the Retired Reserve by reason of being medically disqualified for active duty as a result of a service-connected disability.
8. An 18 April 2008 HRC-STL e-mail, to the applicant, states that the Development Directorate did not find any information to prove or disprove the applicant's medical disqualification as recorded on the orders assigning him to the Retired Reserve.
9. The available record does not include the applicant's service medical records.
10. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9 states that "The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence."
DISCUSSION AND CONCLUSIONS:
1. Without access to the applicant's service medical records it is impossible to determine whether or not the applicant had a medical condition that was or was not medically disqualifying at the time his command transferred him the Retired Reserve.
2. Further, the available documentation in the applicant's iPERMS file does not include any indication that he requested a voluntary transfer to the Retired Reserve at that time.
3. Without evidence to the contrary, the presumption of administrative regularity in the processing of the applicant's transfer must be applied. There is nothing in the available records or in anything submitted by the applicant to overcome this presumption.
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
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) AR20080008398
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ABCMR Record of Proceedings (cont) AR20080008398
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