IN THE CASE OF:	  

		BOARD DATE:	        19 August 2008

		DOCKET NUMBER:  AR20080008527 


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, disability retirement from the Alabama Army National Guard (ALARNG). 

2.  The applicant states, in effect, that he became totally disabled in November 1994 and was discharged on 1 March 1996.  He believes that an injustice occurred in his discharge because the ALARNG determined that his disabilities were not duty related.  He got sick while he was overseas and has never been able to work again.   

3.  The applicant provides a copy of a letter from the Headquarters, 877th Engineer Battalion (Combat Heavy) Administrative Officer; a copy of a letter from The Adjutant, ALARNG; a copy of a Medical Duty Review Board Recommendation; a DA Form 4187 (Personnel Action) requesting retirement; and a copy of his retirement order.

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 served in the Regular Army from 12 November 1968 through 
15 June 1970.  He entered the ALARNG on 10 April 1974.

3.  On 9 April 1995, the ALARNG notified the applicant that he was eligible for retired pay at age 60.  

4.  The available evidence shows that on 6 January 1996, a Medical Duty Review Board recommended the applicant be separated from the ALARNG as medically unfit for retention.  He was informed that he had the right to present any additional information (current doctor's treatment records, etc.) which he felt would be in his interest within 60 days of the date of the notification.  The applicant indicated that he intended to appeal the board's determination.  

5.  On 20 February 1996, the administrative officer of the applicant's unit notified the applicant that he had not furnished any additional documentation that would have any bearing on his appeal of the Medical Duty Review Board and would, therefore, be discharged from the ARNG and placed on the Reserve Retired List. On this same date, the applicant voluntarily completed a request for retirement effective 1 March 1996 because he was medically unfit for retention.  

6.  On 1 March 1996, the applicant was discharged from the ALARNG and placed on the Reserve Retired List.

7.  On 29 March 2000, The Adjutant General, ALARNG, responded to the applicant's request for a medical discharge.  He advised the applicant that there was no record of a Line of Duty Investigation for his high blood pressure.  He was found medically unfit for retention on 21 January 1995 because of uncontrolled high blood pressure and sleep apnea.  He provided documentation from his doctor stating he was totally disabled.  In accordance with regulations, when a Soldier is found medically unfit for retention and is recommended for separation, he is given 60 days to appeal the decision.  However, the applicant did not submit any medical data to appeal the board's decision, and because he had
20 years of qualifying service for nonregular retirement, he was separated from the ALARNG and placed on the Reserve Retired List.

8.  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.  The regulation defines "physically unfit" as unfitness due to physical disability. The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank and rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Chapter 8 outlines the rules for processing through the disability system Soldiers of the Reserve components who are on active duty for a period of less than 30 days or on inactive duty training.  A change in the law in 1986 provided for disability processing of Soldiers who incur or aggravate an injury or disease in the line of duty while performing inactive or active duty training.  Referral for processing does not mean an automatic entitlement to disability compensation.  Once referred, a determination must be made whether the disability was the proximate result of performing duty.  Proximate result establishes a causal relationship between the disability and the required military duty.

9.  Title 10, U.S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least
60 years of age; has performed at least 20 years of qualifying service; and, having completed the service requirement during the period beginning on
1 October 1994 and ending on 30 September 2001, shall have performed the last 
6 years of qualifying service while a member of a reserve component. .

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests disability retirement.  

2.  There is no evidence of error or injustice in the applicant's case.

3.  The applicant was found medically unfit due to his uncontrolled high blood pressure and sleep apnea.  He was given an opportunity to appeal the Medical Duty Review Board recommendation; however, he did not submit any additional medical evidence to support his interests.  Since his medical condition was the found not to be the proximate result of his duties, he was not eligible for disability retirement.  Further, he voluntarily requested discharge and placement on the Reserve Retired List.  He has not provided any probative medical evidence to show that he incurred or aggravated an injury or disease in the line of duty while performing inactive or active duty training.  

4.  Because the applicant had 20 qualifying years for nonregular retirement under the provisions of Title 10, U.S. Code, section 12731, he was placed in the Retired Reserve.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this 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.



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               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)                                         AR20080008527



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ABCMR Record of Proceedings (cont)                                         AR20080008527



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