IN THE CASE OF:	  

		BOARD DATE:	  12 November 2008

		DOCKET NUMBER:  AR20080013087 


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 his honorable discharge of 31 August 1999, be changed to a medical discharge or retirement.  

2.  The applicant states, in effect, that he honorably served in the military for 
17 years, 11 months, and 15 days, and is requesting that his discharge be changed to a medical discharge or retirement based on injuries he sustained on 2 January 1999, while at work at his civilian job.  He states that he fell from the second story of a train, landed on a bracket, and was hit on the head and groin area by a 50-pound plate.  He states that as a result of these injuries he is now 100 percent disabled, which renders him unable to work and/or to finish his military career and continue serving his country, which is what he loved to do most.

3.  The applicant provides Standard Forms (SF) 88 (Report of Medical Examination), SF 93 (Report of Medical History), SF 55B (Emergency Care & Treatment), and various medical summary reports in support of his 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 record shows that he served in the United States Army Reserve (USAR) from 3 February 1980 through 31 August 1999.

3.  On 22 January 1991, while serving in the USAR, the applicant was ordered to active duty in support of Operation Desert Shield/Desert Storm.  

4.  On 12 March 1991, during his active duty separation processing, the applicant underwent a separation physical examination at Fort Jackson, South Carolina.  The SF 88 and SF 93 prepared during this processing provides no indication that he was suffering from a disabling physical or mental condition that would have precluded his retention/separation, or that would have supported his separation processing through medical channels at the time.  The SF 93 contains a statement from the applicant that indicates he was in good health at the time.

5.  On 26 March 1991, the applicant was honorably released from active duty (REFRAD) and returned to his USAR unit after completing 2 months and 5 days of active military service.  The separation document (DD Form 214) he was issued shows he was separated under the provisions of chapter 5, Army Regulation 635-200, by reason of "Directed by the Secretary of the Army."

6.  The applicant’s Official Military Personnel File (OMPF) contains a Retirement Points Summary that confirms that between 3 February 1982 and 31 August 1999 he completed a total of 15 years, 11 months and 28 days of qualifying service for non-regular retirement purposes.  His OMPF is void of any medical treatment records and contains no other documents that indicate he ever suffered from a physically or mentally disqualifying condition during his USAR service.

7.  Headquarters, 100th Division (Institutional Training), Orders Number A-324-2, dated 20 November 1998, released the applicant from his unit and reassigned him to the USAR Control Group (Reinforcement) due to an employment conflict, effective 1 December 1998. 



8.  On 31 August 1999, the applicant was honorably discharged from the USAR under the provisions of Army Regulation 135-178.  There is no indication that the applicant was denied continued service based on a disqualifying medical condition at this time.  

9.  The applicant provides an SF 88 and SF 93, both dated 21 January 1982, which were completed during his enlistment processing.  These documents show he was in good health and was qualified for enlistment.  He also provides an SF 55B, dated 22 March 1992, which shows he injured his lower back while moving mats.  Further, he submits medical consultation forms from civilian medical facilities, dated 21 February 2003 and 16 April 2003, which were completed for a Kentucky worker's compensation case based on a work-related injury that occurred on 2 January 1999.  These documents state that while the applicant was employed at the Ford factory, he injured himself while lifting a 50-pound plate causing him to slip and fall, landing in a seated posture with his tailbone landing on a bracket on the floor.  

10.  Title 10 of the United States Code, section 12731 provides the legal authority for age and service requirements for non-regular retired pay.  It states, in pertinent part, that members are entitled to retired pay when they are at least 
60 years of age and have performed at least 20 years of service.  Section 12731b (Special Rule for Members with Physical Disabilities not Incurred in the Line of Duty) states, in pertinent part, that in the case of a member of the Selected Reserve of a Reserve Component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes.  

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 provides guidance on presumptions of fitness.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been medically retired and the medical document he provided were carefully considered.  However, there is insufficient evidence to support this claim. 

2.  By law, in order to qualify for medical retirement based on an injury not incurred in the line of duty with more than 15 but less than 20 years of qualifying service, a member must be a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability.  

3.  Although the medical documents he provides outline out-patient medical treatment for a back injury in 1992, and an injury to his back he sustained in 
1999 at his civilian job, the medical evidence of record provides no indication that either of these injuries rendered him ineligible for further service in the USAR.  

4.  In this case, the evidence of record confirms the applicant transferred out of the Selected Reserve and into the Individual Ready Reserve (IRR) in November 1998, due to an employment conflict, and that he was ultimately discharged from the USAR on 31 August 1999.  There is no indication that either his transfer to the IRR or his discharge resulted from a disqualifying medical condition.  There is also no evidence that suggests he was denied continued USAR service due to a disqualifying medical condition at the time of his USAR discharge.  As a result, given he was not serving in the Selected Reserve at the time of his discharge, and absent any evidence showing he was medically disqualified from further service either at the time of his transfer to the IRR or at the time of his discharge, there is an insufficient evidentiary basis to support granting the requested relief. 

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.  

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)                                         AR20080013087



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ABCMR Record of Proceedings (cont)                                         AR20080013087



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