IN THE CASE OF:	  

		BOARD DATE: 	       25 June 2009

		DOCKET NUMBER:  AR20080014480 


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 afforded retired pay at age 60 because he was medically retired.

2.  The applicant states, in effect, he was medically disqualified for service due to a condition resulting from the physical requirements of service.  He was told by a staff member of the U.S. Army Reserve Personnel Command in St. Louis that he may be eligible for a Reserve medical disability retirement.

3.  The applicant provides copies of a 10 May 1989 private medical statement, a 6 June 1989 Standard Form 88 (Report of Medical Examination), a 6 June 1989 Standard Form 93 (Report of Medical History), a 28 June 1989 DA Form 3349 (Physical Profile), a disapproval for transfer, and his 13 September 1989 separation orders.

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 had prior active and Reserve service in the U.S. Air Force and service in the California Army National Guard before enlisting in the U.S. Army Reserve (USAR) on 13 February 1981.

3.  On 25 February 1988, he was promoted to sergeant first class in the military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic) with a secondary MOS of 76Y (Unit Supply Specialist) and additional MOS's of 76C (Equipment Records and Parts Specialist) and 71L (Administrative Specialist).

4.  In a statement, dated 10 May 1989, the applicant's private physician indicated that the applicant was suffering from persistent knee problems secondary to an overuse syndrome with symptomatic chondromalacia of both knees.  The doctor recommended the applicant not be required to perform physical activities of his military service.

5.  On 6 June 1989, the applicant was medically evaluated for problems with his knees and given a lower extremity profile of 4.  A review of his medical condition resulted in the applicant being found medically unfit for retention.  The Standard Form 88 has a hand-written notation stating, "needs to be medically retired."

6.  In a statement, dated 27 July 1989, the applicant stated, in effect, that 2 years prior he had started to develop pain and swelling when he would run.  The condition worsened until virtually any physical activity utilizing his knees resulted in pain.  He stated that at that time his full-time job was desk work only.

7.  On 15 August 1989, he elected to transfer to the Retired Reserve in lieu of being discharged.  At this time the applicant had 16 years, 3 months, and 26 days of qualifying service toward receipt of retired pay at age 60.

8.  On 13 September 1989, Headquarters, Second U.S. Army, Fort Gillem, Orders 229-28 transferred the applicant from his troop program unit (TPU) to the USAR Control Group (Retired) due to being found medical disqualified for retention.

9.  During this period the applicant's Noncommissioned Officer Evaluation Reports show he was performing his military duties well and was recommended for promotion and positions of increased responsibility.

10.  In February 2000 the applicant applied for transfer from the Retired Reserve to a TPU to complete his 20 years of service for retired pay at age 60.
11.  On 25 August 2000, he was notified that his transfer to a TPU was disapproved because he was found to be medically disqualified.

12.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-2b(1), provides 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.

14.  Public Law 103-337, dated 5 October 1994, established early Reserve retirement eligibility for Soldiers involuntarily separated from the Selected Reserve due to physical disability during the period 5 October 1994 through 30 September 1999 (later extended through 31 December 2001).  Eligibility is based on a minimum of 15 years of qualifying service toward Reserve Component retirement.  Title 10, U.S. Code, section 12731a(1) was amended to extend the Early Reserve Retirement Eligibility for Disabled Members to the period beginning on 23 October 1992 and ending on 1 October 1999 to Soldiers who attained 15 years of retirement eligibility after October 1991.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, he was medically disqualified for service due to a condition resulting from the physical requirements of service and he was told that he may be eligible for a special Reserve medical disability retirement.

2.  While the record shows the applicant's service was interrupted due to a medical condition, it does not contain any documentation to show that his knee problems were the result of a service-incurred illness or injury or were aggravated by his period of service.  Therefore, there is insufficient evidence to grant the applicant's request based on a physical disability incurred or aggravated in service.

3.  Additionally, the Early Reserve Retirement Eligibility for Disabled Members law does not apply in this case.  The applicant was involuntarily separated from the Selected Reserve due to physical disability prior to enactment of the law authorizing early retirement.  In addition, although he completed his 15 years of qualifying service under this law prior to 1 October 1991, the law established the eligibility period for retirement as beginning on 23 October 1992.  The applicant was involuntarily separated on 13 September 1989, 3 years prior to the enactment of the law.

4.  While the circumstances surrounding this case are unfortunate, no error or injustice has occurred.  Therefore, in view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080014480



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ABCMR Record of Proceedings (cont)                                         AR20080014480



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