IN THE CASE OF:	   

		BOARD DATE:	        20 November 2008

		DOCKET NUMBER:  AR20080014667 


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, a 15-year Reserve Component retirement or that he be issued a 15-year letter.  He also requests that his line of duty (LOD) statement and medical records be amended.   

2.  The applicant states, in effect, that his LOD statement is vague and hard to understand and that it needs to be amended to read he was medically unfit for retention because he was injured on active duty on 7 June 1997 and medically retired in 2000.  He states that on 7 June 1997 he was performing flagging (road guard) operations for military convoys at a rest stop and there was an auto accident adjacent to his lane of flagging and the fumes from the heavy traffic were overcoming at times and making him sick.  He indicates that his injuries were aggravated on 7 June 1997 by his working conditions at the rest area, that it was not until this injury that the doctors knew how sick he was really getting, and that he should be receiving disability pay from the Army National Guard.  He claims that he has 17 years for retired pay and a total of 21 years for pay purposes.  He indicates that he has been calling in sick from 7 June 1997 to 
13 February 1998 on both his Army National Guard job and his fire department job.  He further states that he should have been referred to a Physical Evaluation Board (PEB), the Disabled Transition Assistance Program (DTAP), or placed on the Temporary Disability Retired List (TDRL).

3.  The applicant also states that his statement of medical examination and DA Form 2173 (Statement of Medical Examination and Duty Status) are incorrect and should be amended. 

4.  The applicant provides, in support of his application, medical records; a letter, dated 2 April 1998, from the Department of Veterans Affairs (DVA); a memorandum, dated 21 December 1998; a letter, dated 22 May 2008, from the Office of the Inspector General, Massachusetts National Guard; discharge orders; an Army National Guard Current Annual Statement, dated 4 April 2008; and a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 23 June 2000.

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 was born on 11 February 1956.  After having had prior service, he enlisted in the USAR on 16 June 1988.  He was ordered to active duty on 
12 June 1991 in support of Operation Desert Shield/Desert Storm and was released from active duty on 16 October 1991 and transferred to the USAR.  On 13 December 1993, he enlisted in the Massachusetts Army National Guard (MAARNG).      

3.  A DA Form 2173, dated 10 June 1997, states, in pertinent part, that the applicant was injured on 7 June 1997 while performing duties of a road guard while on inactive duty training.  The form states that a motor vehicle accident occurred in the passing lane adjacent to the applicant's position on the side of the highway.   A car not involved in the accident veered off to the right and jammed on its brakes, coming to a stop in the direction of the applicant.  The form also states that the applicant was not hit by the civilian vehicle.   

4.  The applicant provided a medical record, dated 7 June 1997, which shows he went to the Emergency Room for a chronic headache.   



5.  A memorandum, dated 6 January 1999, from the Commonwealth of Massachusetts, The Adjutant General's Office, states, in pertinent part, that the Army National Guard Bureau Chief Surgeon's Office determined that there was no injury or illness related to military training on 7-8 June 1997 and the request for an LOD determination was returned without action.  This memorandum states that the applicant should be referred to the Veterans Administration for any Desert Storm related medical treatment and that he should be processed through the State Medical Duty Review Board for determination of retention standards in the Army National Guard.

6.  The applicant provided a letter, dated 2 April 1998, from the DVA which states, in pertinent part, that the applicant is unable to perform his duties as a firefighter, that his psychiatric diagnoses are organic personality disorder and generalized anxiety disorder, and that his disability is permanent.  The letter also states that the applicant's brain will not repair itself from damage consistent with carbon monoxide poisoning and that functional assessment demonstrated worsening between 1995 and 1997.    

7.  Departments of the Army and the Air Force, Massachusetts National Guard, Office of the Adjutant General Orders 182-1, dated 30 June 2000, and the applicant's NGB Form 22 show that on 23 June 2000 the applicant was honorably discharged from the Army National Guard and as a Reserve of the Army and placed on the permanent disability retired list.  

8.  The applicant provided a letter, dated 22 May 2008, from the Office of the Inspector General which states, in pertinent part, that there are no documents in the applicant's record justifying placement on the "Permanent Disability Retired List."

9.  Records at the Defense Finance and Accounting Service (DFAS) do not show the applicant is receiving retired pay.     

10.  The applicant’s Army National Guard Retirement Points History Statement, dated 22 January 2004, shows he had 17 years of qualifying service for retired pay.

11.  Title 10, U.S. Code, Section 12731b(a) states that 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 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.   

12.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay 
benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

13.  DTAP is a DVA program that concentrates on those service members being separated due to a disability incurred while on active duty. 

DISCUSSION AND CONCLUSIONS:

1.  Since DFAS records show the applicant is not receiving retired pay, the applicant's 30 June 2000 discharge orders and his NGB Form 22 which show he was honorably discharged from the Army National Guard and as a Reserve of the Army and placed on the "permanent disability retired list" appear to be incorrect.  It appears he was separated for being medically unfit for retention.

2.  Since the applicant was in the Selected Reserve at the time, it appears he was found medically unfit for retention and that he had completed 17 years of creditable service for retired pay.  Therefore, it would be equitable to issue him a 15-year letter and to amend his discharge orders and his NGB Form 22 to show he was discharged from the Army National Guard and transferred to the Retired Reserve due to being medically unfit for retention.

3.  Although the applicant contends that he was medically unfit for retention because he was injured on active duty on 7 June 1997 and that his injuries were aggravated on 7 June 1997 by his working conditions at the rest area, the 2 April 1998 DVA letter provided by the applicant states that his brain will not repair itself and that functional assessment demonstrated worsening between 1995 and 1997.  Therefore, there is insufficient evidence to show that this condition arose or was aggravated solely by performing his military duties on 7 June 1997.  Based on the foregoing, there is no basis for referral to a PEB, the DTAP, or placement on the TDRL.     



4.  The applicant's contention that his LOD statement is vague and needs to be corrected to show he was injured on active duty was noted.  However, evidence of record shows the Army National Guard Bureau Chief Surgeon's Office determined that there was no injury or illness related to military training on 
7-8 June 1997 and the formal investigation was returned without action.  There is no evidence to show he was on active duty on those dates.  It appears that was his weekend inactive duty training period.   

5.  The applicant’s request that his medical records be amended was noted.  However, the Army has an interest in promoting the reliability of its medical records.  Alteration or removal of records after the fact may lead to fundamental questions about the veracity of the records in this case and in general.  For these 
reasons, the Board declines to alter or remove records in the applicant’s medical records.  The Secretary’s interest is in ensuring an orderly system in which a physician makes certain observations and records them faithfully in the medical records at the time.  It would take an extraordinary showing to alter such a diagnosis or medical observation or remove records.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  __X______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by issuing to him a
15-year letter (Notification of Eligibility for Retired Pay at Age 60) certifying eligibility for non-regular retired benefits at age 60 and be amending his 30 June 2000 discharge orders and his NGB Form 22 to show he was discharged from the Army National Guard and transferred to the Retired Reserve due to being medically unfit for retention.
 


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending the applicant's LOD statement and/or medical records.




      ________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)                                         AR20080014667



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ABCMR Record of Proceedings (cont)                                         AR20080014667



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