IN THE CASE OF:	  

		BOARD DATE:	       13 November 2008

		DOCKET NUMBER:  AR20080011407 


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 he be retired under the Temporary Special Retirement Qualification Authority or, in the alternative, that he be restored to duty.

2.  The applicant states he should have been medically retired with a 100 percent service-connected disability.  He states, although he had medical problems, he continued to serve and never failed an Army Physical Fitness Test (APFT).  He adds his disability should have been service-connected instead of characterized as nonduty-related.

3.  The applicant provides:

	a.  Two DD Forms 149 (Application for Correction of Military Record) – one online version, and one hardcopy version.

	b.  NGB Form 22 (Report of Separation and Record of Service).

	c.  Memorandum, Departments of the Army and Air Force, Joint Force Headquarters (HQ), Mississippi National Guard, The Adjutant General’s Office, Jackson, MS, dated 1 October 2005.

	d.  Memorandum. Department of the Army, United States Army Physical Disability Agency (USAPDA), Walter Reed Army Medical Center, Washington, DC, dated 11 April 2005.

	e.  Memorandum, USAPDA, dated 4 April 2005.

	f.  Memorandum from applicant, dated 28 March 2005, rebutting his Physical Evaluation Board (PEB) hearing of 21 March 2005.

	g.  Memorandum, US Army Physical Evaluation Board, Fort Sam Houston, TX, dated 21 March 2005.

	h.  Memorandum, US Army Physical Evaluation Board, Fort Sam Houston, TX, dated 2 March 2005.

	i.  Memorandum, HQ, 2nd Battalion, 198th Armor (Rear), Mississippi Army National Guard (MSARNG), Senatobia, MS, dated 6 February 2005.

	j.  Memorandum, US Army Physical Evaluation Board, Fort Sam Houston, TX, dated 11 January 2005.

   k.  Orders 219-01, Department of the Army, Mobilization Center Shelby, Camp Shelby, MS, dated 6 August 2004.

	l.  Orders 219-02, Department of the Army, Mobilization Center Shelby, Camp Shelby, MS, dated 6 August 2004.

	m.  DA Form 3349 (Physical Profile), dated 5 August 2004.

	n.  DD Form 2161 (Referral for Civilian Medical Care), dated 31 July 2004.

	o.  Memorandum, Office of The Adjutant General, Jackson, MS, dated 14 October 1999.

	p.  Veterans Administration Medical Certificate, dated 17 October 1984.

	q.  Treatment Record for 21 August 1981 and 4 November 1981, Troop Medical Clinic, Fort Leonard Wood, MO.


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 enlisted in the US Army Reserve Delayed Entry Program (DEP) on 13 May 1981.  On 4 August 1981, he was discharged from the DEP and enlisted in the Regular Army on 5 August 1981.  He served in the Regular Army until separated on 15 June 1984.

3.  After a break in service from 16 June 1984 through 26 October 1984, the applicant enlisted in the Army National Guard on 27 October 1984.  He served until honorably discharged from the National Guard and as a Reserve of the Army by reason of being medically unfit for retention on 13 April 2005.

4.  The applicant’s records contain a DA Form 2173 which was initiated on 27 July 1999 when the applicant was at summer camp at Fort Irwin, CA.  He reported to the Troop Medical Clinic seeking a refill for pain medication for a pre-existing medical condition – “broken lumbar vertebrae under care of VA Medical system.”

5.  The applicant’s complete medical records are unavailable for this review.  However, he apparently underwent an informal, nonduty-related PEB at Fort Sam Houston, TX on 25 February 2005; a copy of the PEB is not available.  He rebutted the findings and recommendation of the PEB on 25 February 2005 and apparently argued that his medical condition was service-connected.  On 2 March 2005, the PEB responded by stating his rebuttal contained no new objective medical evidence or performance evidence which would warrant a change in the original findings and recommendation.  He was informed that his rebuttal would be presented for consideration during a formal PEB on 21 March 2005.


6.  The applicant underwent a formal PEB at Fort Sam Houston, TX on 21 March 2005.  The DA Form 199 indicates he was found “...UNFIT.  HIS PROFILE FOR BACK PAIN DOES NOT PERMIT FUNCTIONAL ACTIVITIES OR AN APFT AEROBIC EVENT.”  He was not assigned any disability percentage, and his case was referred back to the Reserve component for disposition.  The case was adjudicated as a nonduty-related case.

7.  The PEB-referenced physical profile was not available; however, the applicant provided a 5 August 2004 DA Form 3349 which shows he received a permanent P-3 profile for his lower extremities.  The profile indicates “BACK INJURY NOT SERVICE RELATED” and “RIGHT THUMB CURRENTLY BEING EVALUATED BY VA HOSPITAL.”

8.  The applicant rebutted the formal PEB on 28 March 2005.  In his rebuttal, he stated he had been “treated as a common AWOL criminal or a deserter.”  He recounted his 13-plus years of Regular Army and National Guard service.  He stated that he was activated for Operation Iraqi Freedom (OIF) in 2004 (25 July to 7 August 2004) and informed mobilization officials that he had “some medical evaluations underway for service-connected disabilities” and the Mobilization Center sent him back home.  Following this turn of events, the MSARNG abandoned him and the physical disability evaluation process was initiated.  He stated his “service-connected disabilities” never prevented him from doing his job or from performing the APFT.  He added no one would help him and he was “being treated unfairly, disgraced, degraded and abused by the US ARMY PEB board as unfit.”

9.  The PEB reviewed the applicant’s rebuttal and, on 4 April 2005, informed him the board found no reason to change the original findings.

10.  On 11 April 2005, the USAPDA reviewed the applicant’s PEB and concluded his case was properly adjudicated and that the PEB correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination.

11.  The applicant’s case was referred back to the MSARNG which processed the applicant for discharge as being unfit for continued service under the provisions of National Guard Regulation (NGR) 600-200, paragraph 8-26j(1)[sic].

12.  At discharge, the applicant had 13 years, 6 months, and 20 days of qualifying service for non-regular retirement at age 60.  He was not in receipt of a 20-year letter qualifying him for a non-regular retirement.


13.  Title 10, U.S. Code, section 12731a – Temporary Special Retirement Qualification Authority provides for retirement with at least 15 years of service.  It states the Secretary concerned may determine to treat a member of the Selected Reserve of a reserve component of the armed force under the jurisdiction of that Secretary as having met the service requirements for entitlement to retired pay if the member has completed at least 15, and less than 20, years of service; and upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. 

14.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U.S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications of membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.

15.  Paragraph 8-26, National Guard Regulation 600-200, outlines the reasons, applicability codes and board requirements for administrative discharge from the State ARNG and/or as a Reserve of the Army.  Paragraph 8-26g(1) refers to “other designated physical or mental conditions.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, retirement under the Temporary Special Retirement Qualification Authority, or restoration to duty.

2.  The applicant was mobilized for OIF on 25 July 2004 and ordered to report to Camp Shelby, MS.  Upon arrival, he surfaced physical disability issues which he believed precluded his deployment.  On 7 August 2004, he was released from Camp Shelby and returned to his MSARNG unit headquarters.

3.  Although the genesis for his referral to the PDES is not available in the record, it is apparent he was entered into the PDES as a result of his non-deployability during the period 25 July to 7 August 2004.  He underwent an informal and a formal, nonduty-related PEB at Fort Sam Houston, TX and he was found unfit with no disability rating, based upon nonduty-related conditions.  His case was returned to the National Guard for disposition.

4.  The applicant does not qualify for a 15-year retirement under 10 USC §12731a or 10 USC §12731b because he served only 13 years, 6 months, and 20 days of Selected Reserve service.

5.  The National Guard properly separated the applicant as medically unfit based upon the findings of the PEB.  Because he was determined to be medically unfit by a formal nonduty-related PEB, his restoration to duty is not a viable option.

6.  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.



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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)                                         AR20080011407



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ABCMR Record of Proceedings (cont)                                         AR20080011407



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