IN THE CASE OF:	  

		BOARD DATE:	        09 DECEMBER 2008

		DOCKET NUMBER:  AR20080011406 


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 her nonregular retirement be changed to a retirement due to permanent physical disability.

2.  The applicant essentially states that she was recommended to a medical board for a determination whether she should be medically retired or retained in the service.  She also believes that the paperwork recommending this was not presented to her or brought to her attention until after her retirement application was approved.  She further states that an employee relations specialist told her that it would take too long for her to process a disability retirement.  Additionally, she states that she honorably performed on active duty and in the National Guard, but that her service-connected disabilities were increasing to the extent that it was affecting her job and decision-making ability.  

3.  The applicant provides two letters, dated 16 September 2008 and 24 June 2008, from the American Legion; a memorandum, dated 22 July 2003, from the State Surgeon of the District of Columbia National Guard (DCNG); an unsigned  memorandum, dated 22 September 2003, from a national service officer from an unknown organization; a portion of Table 7-2 (Profile Codes) from Army Regulation 40-501 (Standards of Medical Fitness), dated 30 September 2002; a DA Form 3349 (Physical Profile), dated 22 July 2003, which issued her a 90-day temporary profile; a DA Form 2807-1 (Report of Medical History), dated 
8 February 2003, that was prepared as part of her over-40 physical; a DA Form 3349, dated 9 March 2002, which issued her a 30-day temporary profile; an 
undated and unauthenticated DA Form 3349 which appears to have awarded her a temporary profile which expired on 31 August 2002; and a letter, dated 22 April 1996, from a physician in support of this application.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, that the Board review the applicant's discharge to determine if her separation was processed in accordance with Department of Defense Policies.

2.  Counsel states, in effect, that the issues raised on the applicant's DD Form 149 amply advance her contentions and substantially reflect the probative facts needed for equitable review.

3.  Counsel provides no additional documents with the application.  

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 military records show that she was born on 14 October 1948 and that she served on active duty in the Regular Army from 8 May 1978 to 31 March 1992.  She was then transferred to the United States Army Reserve (USAR) on 1 April 1992.  She subsequently enlisted in the Army National Guard, and was issued her 20-year letter on 27 January 1998.  She steadily rose through the ranks and was promoted to master sergeant/E-8 with a date of rank of 17 April 2002.  

3.  DCNG, Orders 248-019, dated 5 September 2003, as amended by DCNG, Orders 349-010, dated 15 December 2003, discharged the applicant from the Army National Guard, effective 30 April 2004 and transferred her to the USAR Control Group (Retired Reserve) on 1 May 2004.  She had 26 qualifying years of service for retired pay purposes and was eligible to apply for non-regular retired pay at age 60 (14 October 2008).

4.  The applicant's military records, other than documents related to her retirement and an unauthenticated DA Form 2-1 (Personnel Qualification 
Record – Part II), are void of any information regarding her service/duty performance in the DCNG.  

5.  The applicant provided a memorandum, dated 22 July 2003, from the State Surgeon of the DCNG, which stated that the applicant's medical conditions were evaluated by two profiling officers on 21 July 2003 for consideration of a profile, and that a temporary profile was subsequently issued to her.  This memorandum also stated, in effect, that it was determined that the applicant's medical conditions did not meet retention standards in accordance with Army Regulation 40-501, and that she should be separated from the DCNG.  This memorandum further stated that the applicant could appeal those findings to a Physical Evaluation Board (PEB) for a determination of fitness.  There is no evidence that she appealed to a PEB.

6.  The applicant also provided temporary profiles for various medical conditions. However, there is no evidence in the available records which show that any of the temporary medical conditions that the applicant had met the criteria to be eligible to receive medical retirement and/or severance pay benefits.  It was noted that the DCNG signature on the DA Form 3349, dated 9 March 2002, was significantly different than the DCNG State Surgeon signature on the 22 July 2003 memorandum.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that under the laws governing the Army Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate 
physically unfitting disabilities must meet line of duty criteria to be eligible to receive retirement and severance pay benefits, and that a disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  Line of duty decisions are reached according to policies and procedures prescribed in Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations), and copies of line of duty decisions must be included in the official records of the case.

8.  Army Regulation 40-501, Standards of Medical Fitness, provides in paragraph 10-25, that Department of Defense Instructions (DODI) 1332.38 states that members with non-duty related impairments are eligible to be referred to the Physical Evaluation Board (PEB) solely for a fitness determination, but not a determination of eligibility for disability benefits.  The Soldier is responsible for requesting that his/her packet be submitted to the PEB and the Soldier is responsible for preparing his/her packet for submission to the PEB.

9.  Army Regulation 635-40 also provides, in pertinent part, 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.  This regulation also provides, in pertinent part, 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.

10.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (DVA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a DVA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating 
under different policies, to arrive at different positions.  Furthermore, unlike the 
Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting 
the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that, subsequent to 1 July 1949, qualifying service is granted for each year of service an individual earns 50 or more retirement points.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides 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.  The applicant contends that her nonregular retirement should be changed to a retirement due to permanent physical disability.

2.  The fact that the applicant was issued temporary profiles for various medical conditions was noted, as was the 22 July 2003 memorandum from the DCNG State Surgeon which stated that the applicant's medical conditions did not meet retention standards in accordance with Army Regulation 40-501.  However, the DCNG State Surgeon also stated in this memorandum that the applicant should be separated from the DCNG.  Additionally, Army Regulation 635-40 provides that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet line of duty criteria to be eligible to receive retirement and severance pay benefits, and that a disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.
This regulation also states that line of duty decisions are reached according to 
policies and procedures prescribed in Army Regulation 600-8-4, and that copies of line of duty decisions must be included in the official records of the case.  As the applicant's military records do not contain any evidence that her medical conditions met line of duty criteria, and the applicant failed to provide any evidence of this, regularity must be presumed in this case.

3.  Additionally, Army Regulation 40-501 provides that members with non-duty related impairments may be referred to a PEB solely for a fitness determination; but not a determination of eligibility for disability benefits.  The member is responsible for the preparation of their packet for submission to the PEB.  Inasmuch as there is no evidence to show that the medical conditions which resulted in her being declared as not meeting medical retention standards were determined to be incurred in the line of duty, as evidenced by a Line of Duty Investigation, the applicant was not entitled to separation by reason of physical disability.  As there is no evidence in her military records which shows that her impairments were incurred in line of duty, it must be presumed that her impairments were non-duty related and regularity again must be presumed in this case.

4.  The applicant's contention that should have been referred to a PEB has been noted; however, it was the applicant's responsibility to request that her packet be submitted to the PEB and to prepare her packet for submission.  Additionally, the PEB could only make a determination for fitness, not for disability.  Inasmuch as the applicant has not provided evidence to show that she was referred to a PEB or that she attempted to request referral and was unjustly denied, her contention appears to have no merit.

5.  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.  In view of the foregoing, there is no basis for changing her nonregular retirement to a retirement due to permanent physical disability.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States throughout her military career.  The applicant and all Americans should be justifiably proud of her service in arms.


      ________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)                                         AR20080011406



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ABCMR Record of Proceedings (cont)                                         AR20080011406



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