IN THE CASE OF:	

		BOARD DATE:	  11 December 2008

		DOCKET NUMBER:  AR20080013806 


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 that her medical retirement be changed to voluntary retirement for 20 years of service, and that she be promoted to sergeant first class (SFC).

2.  The applicant states, in effect, that in 1992, she received a neuropsychological evaluation at William Beaumont Army Medical Center (WBAMC), El Paso, Texas.  The evaluation concluded that she had experienced a brain injury due to a stroke in 1991 upon her return from the Gulf War.  Her diagnosis was cerebral stroke secondary to migraine.  The deficits were severe and a medical retirement was recommended.  Therefore, on 15 December 1993, she received a medical retirement and was promoted to SFC on 1 January 1994.

3.  She believes that an injustice occurred.  Her cognitive functions and judgment were impaired when she made the life changing decision to accept the medical retirement.  She believes she should have been awarded her promotion to SFC and received a 20 year retirement.  She states that she was in charge of the Promotion Section for the 55th Personnel Service Company, 3rd Armored Cavalry Regiment, Fort Bliss, Texas and she would never have consented to retire 1 month prior to being promoted to SFC if her judgment had not been impaired.

4.  She also states that her reentry eligibility (RE) code of RE-4 does not allow her to enlist in the Reserve to complete her 20 year commitment and without the  
20 year commitment she cannot apply for the Concurrent Retirement and Disability Pay (CRDP).  She states that her loss of promotion and the assigned RE code of RE-4 have kept her from being able to get the benefits she deserves.  She has been out of the Army for 14 years and she is doing well thanks to a therapist at the Department of Veterans Affairs (DVA).  The loss of the promotion and her assigned RE-4 code are not anyone's fault.  They occurred due to her lack of knowledge or ability to remember after having the stroke.

5.  The applicant provides four copies of DVA Rating Decisions dated  
28 September 1993, 7 March 1995, 4 August 1997 and 5 February 2002; Patient Admission Record, dated 10 November 1992; Medical Evaluation Board (MEBD) proceedings, dated 19 February 1993; Narrative Summary (NARSUM); Report of Medical History; DA Form 199 (Physical Evaluation Board (PEB)) proceedings; and Department of the Army U.S. Total Personnel Command Orders Number D224-3, dated 24 November 1993. 

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 personnel record shows she enlisted the Regular Army on 29 April 1975.  She completed the necessary training and was awarded the military occupational specialty (MOS) 75C (Personnel Management Specialist).  She was later awarded the MOS 76P (Supply Specialist).

3.  The Patient Admission Record that the applicant submitted shows that she was admitted to WBAMC on 10 November 1992 to undergo a medical board for migraine and vasospasms that occurred 1 year prior.  The record shows the applicant had resumed her previous job responsibilities, but she was unable to fulfill them due to a presence of a slight neurodeficit (memory loss, decreased Intelligence Quotient (IQ), and emotional instability).


4.  On 19 February 1993, an MEBD convened and diagnosed the applicant with cerebral stroke secondary to migraine.  The MEBD referred the applicant to a PEB.  The applicant agreed to the findings and recommendation and indicated her desire to stay on active duty.

5.  The NARSUM indicates the applicant suffered a brain injury due to having a stroke in July 1991 while she was on leave in California.  In August 1991, she was evaluated at WBAMC and the final diagnosis was migraine induced stroke.  She was prescribed steroid therapy to prevent a recurrence of the stroke.  She gained 70 pounds and she was unable to perform her duties; therefore, she was referred to a MEBD due to difficulties in the work place and an inability to lose weight while on steroids.  

6.  The NARSUM also noted the applicant had difficulty performing tasks requiring more than one step.  The applicant's deficits were sufficiently severe to impair her ability to perform her duties.  Her impairment not having changed in 
10 months showed no further improvement would occur.  The doctor’s recommendation was that the applicant be medically retired from the military.  The MEBD referred the applicant to the PEB for evaluation.

7.  On 19 August 1993, a PEB was convened which determined that the applicant was physically unfit due to cerebral stroke secondary to migraine with mild motor and sensory changes on her right side, confusion, memory loss, and a Halstead-Reitan index of .71.  The PEB stated that the applicant continued to have a disability that had not improved with time and prevented her from carrying out the duties of her MOS.  Based on the review of the objective medical evidence of record, the PEB found that the applicant's medical and physical impairments prevented reasonable performance of duties required by the grade and military specialty.  The PEB rated those conditions 30 percent disabling under Veterans Administration Schedule for Rating Disabilities (VASRD) Codes 8008 and 9306.

8.  She was honorably retired due to physical disability – permanent on  
15 December 1993 and placed on the retired list on 16 December 1993.  She completed 18 years, 7 months, and 17 days of net active service and given a Separation Program Designator (SPD) code of SFJ.

9.  The DVA rating decisions that were submitted by the applicant show a series of claims pertaining to service-connected disability compensation.

10.  The applicant's record does not contain any promotion orders for the rank of SFC.

11.  Army Regulation 40-501 (Retention Medical Fitness Standards) chapter  
3 provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and if it appears the member is not medically qualified to perform their duties or fails to meet the retention criteria the member will be referred to a MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  This same regulation states that a Soldier may not be retained or separated solely to increase retirement or separation benefits.

13.  Table 3-1 (U.S. Army Reentry Eligibility Codes) of Army Regulation  
601-210 (Active and Reserve Components Enlistment Program) states that  
RE-4 applies to persons separated from the last period of service with a non-waivable disqualification.

14.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table  
2-3, states that the SPD code of SFJ denotes involuntary discharge (disability permanent).

15.  The Army Human Resources Command publishes a cross-reference of SPD and RE codes.  This cross-reference shows that an SPD code of SFJ is assigned an RE code of RE-4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that her medical retirement be changed to voluntary retirement for 20 years of service and that she be promoted to SFC.

2.  The evidence shows the applicant was evaluated at WBAMC and was diagnosed with migraine induced stroke in August 1991 and 10 November 1992.  On 19 February 1993, an MEBD was convened and diagnosed the applicant with cerebral stroke secondary to migraine.  The applicant was referred to a PEB and the PEB found that the applicant's medical and physical impairment prevented her from performing her duties required by her grade and military specialty.  The PEB rated those conditions 30 percent disabling under VASRD Codes 
8008 and 9306 and the applicant was honorably retired due to physical disability-permanent.  There is no error or injustice in the sequence of events.  As such, the applicant is not entitled to correction of her records to show a voluntary retirement for 20 years of service.

3.  The applicant agreed to the findings and recommendation from the MEBD and indicated her desire to stay on active duty.  However, she was unable to perform the duties of her grade and MOS with her medical disqualifying condition.

4.  There is no evidence available to indicate the applicant was promoted to SFC.

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)                                         AR20080013806



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ABCMR Record of Proceedings (cont)                                         AR20080013806



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