IN THE CASE OF:	  

		BOARD DATE:	      18 AUGUST 2009

		DOCKET NUMBER:  AR20080014915 


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, through his Representative in Congress, essentially requests reconsideration of his previous request that he be reinstated on active duty in the United States Army Reserve (USAR) Active Guard Reserve (AGR) program, be allowed to reenter the USAR in another status, be medically retired, or be furnished a 15-year early retirement.

2.  The applicant states that the basis for his appeal is supported by Army Regulation 15-185 (Army Board for Correction of Military Records), 
paragraph 2-4 and 2-10c-(3), for a "waiver of statute in the interest of justice."  He contends that the ambiguity in Army Regulation 15-185 to return his request without further action due to not submitting his request in a timely manner is not only misleading but is not in the best interest of justice or fairness.  He states that he strongly believes that he met the submission requirement as set forth in accordance with Army Regulation 15-185, paragraph 2-15b, as the Army Board for Correction of Military Records (ABCMR) convened on 29 June 2006; however, the Board’s results were not officially annotated and the official letter notifying him of the Board’s decision was not drafted until 11 July 2006.  He states that being very conservative, he added 5 days of minimal processing and delivery time to reach him by mail and 5 days added to 11 July 2006 leaves a submission deadline date for consideration of 17 July 2007 which he met.

3.  The applicant states that since the ABCMR acknowledged his request for reconsideration on 12 July 2007, the ABCMR should have assumed complete responsibility and accountability for the accurate processing of his appeal and that not doing so undermines the entire appeals process and is unjust and unfair.  He states that his request for reconsideration should be further processed and that the information that he submitted in support of his request should be favorably considered.  He states that his case should be reviewed in its entirety with all the facts carefully evaluated, considered, and addressed with appropriate action taken.

4.  The applicant provides:

	a.  a self-authored statement of his case, dated 15 July 2008;

	b.  an ABCMR letter denying his request for reconsideration of his previous ABCMR appeal, dated 24 September 2007;

	c.  an ABCMR letter dated 12 July 2007 acknowledging receipt of his request for reconsideration;

	d.  a self-authored letter dated 10 July 2007 submitted to follow-up on his appeal of the decision made in his case by the ABCMR on 29 June 2006;

	e.  a self-authored letter dated 2 July 2007 appealing the decision made in his case by the ABCMR on 29 June 2006;

	f.  an ABCMR letter dated 11 July 2007 notifying him of the decision made in his case by the ABCMR on 29 June 2006;

	g.  an ABCMR memorandum to the United States Army Review Boards Agency Support Division dated 11 July 2007 notifying that agency of the decision made in his case;

	h.  ABCMR Record of Proceedings dated 29 June 2006;

	i.  his DD Form 149 (Application for Correction of Military Records) and continuation sheet, dated 22 September 2005;

	j.  electronic mail (email) messages between officials at the United States Army Human Resources Command (HRC), the Walter Reed Army Medical Center, and himself;

	k.  a memorandum from the United States Army Physical Disability Agency (USAPDA) dated 8 September 2004 notifying him of his denial for continuation in the AGR program;

	l.  a memorandum from HRC dated 6 August 2004 notifying USAPDA of the denial of the applicant’s continuation as a Soldier in the AGR program;

	m.  a USAPDA memorandum dated 24 July 2004 notifying HRC that the applicant’s findings of unfitness were approved;

	n.  his Physical Evaluation Board (PEB) Proceedings and his Medical Evaluation Board (MEBD) Proceedings;

	o.  a Commander’s Performance Statement dated 22 March 2004; 

	p.  medical records and tests;

	q.  a self-authored statement dated 15 July 2008 disputing the information that the doctor presented during his MEBD;

	r.  Orders R-07-104748 dated 25 July 2001 ordering him to active duty in an Active Guard Reserve status;

	s.  Orders 01-268-048 dated 25 September 2001 releasing him from his current assignment and assigning him to the United States Army Reserve Control Group (Active Guard Reserve);

	t.  his enlistment contract and statement of understanding;

	u.  his Reports of Medical History, Reports of Medical Examination, Personnel Action, Request for Reenlistment or Extension, a laboratory inquiry, and his Army Physical Fitness Test (APFT) Scorecard;

	v.  a Statement of Service dated 27 October 2004;

	w.  his Noncommissioned Officer Evaluation Reports (NCOER) dated 23 September 2004 and 24 March 2004 and his Service School Academic Evaluation Reports dated 22 January 2003 and 27 February 2003;

	x.  his Personnel Qualification Record;

	y.  excerpts from Department of the Army Pamphlet 611-21 (Military Occupational Classification and Structure) and Army Regulation 40-501 (Standards of Medical Fitness); and

	z.  a letter from his Representative in Congress dated 20 August 2008 to the ABCMR stating that an authorization form is attached.
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20050014791 on 29 June 2006.

2.  The applicant provides new arguments that will be considered by the Board.

3.  On 20 September 1988, the applicant enlisted in the Regular Army in Beckley, West Virginia, for 3 years.  He successfully completed his training and he was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  He remained on active duty through a series of reenlistments and extensions and he was promoted through the ranks to the pay grade of E-6.

4.  After completing 12 years, 9 months, and 1 day of net active service, the applicant was discharged on 20 June 2001 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 4, upon completion of his required active service.

5.  The applicant’s NCOER for the period June 2000 through May 2001 shows that at the time of his discharge the applicant’s primary MOS was 88M; however, his principal duty title was Field Recruiter.

6.  The applicant enlisted in the USAR on 21 June 2001 in the pay grade of E-6 and was assigned a Personnel Services Specialist duty MOS.  On 12 August 2001, he was ordered to active duty in the AGR program for a 3-year commitment.  Effective 1 July 2002 he was promoted to the pay grade of E-7 and awarded a primary MOS of 75H4O (Personnel Services Specialist) (later converted to MOS 42A (Human Resources Specialist)).

7.  Medical records contained in the applicant’s official record dated 25 August 2003, 11 September 2003, and 4 October 2003 show that he was in compliance with Army standards during those time frames.

8.  On 19 February 2004, the applicant was evaluated at Womack Army Medical Center, Fort Bragg, North Carolina, for asthma with consideration for an MEBD.  During the evaluation, the doctor described the applicant as a 34-year old male AGR member who was in an activated status with a history of asthma that was diagnosed in 1992.  The doctor stated that the applicant’s asthma symptoms were worsening and that he was having difficulty wearing his protective mask.  He stated that the applicant was seen approximately 1 week prior to his evaluation in the emergency room and was placed on a treatment of oral Prednisone.  According to the doctor, the applicant stated that the symptoms of his asthma had been getting worse over the past few months and that he was requiring rescue Albuterol use on a daily basis despite compliance with his current medications of Advair, Singular, Albuterol, Flonase, and Allegra for his allergic rhinitis.  The doctor stated that the applicant was able to pass the APFT including the 2-mile run, which he passed in October 2002; however, the applicant reported difficulty wearing the protective mask and was unable to wear it to standard at the time of the evaluation.  Additionally, the applicant reported that he was unable to perform the military duties of his MOS and grade secondary to his asthma symptoms with exposure to dust and allergens in a field environment.  The doctor’s assessment was moderate to severe persistent asthma requiring daily Albuterol use which interferes with the applicant's ability to perform his military duties and to wear his protective mask.  The doctor stated that the applicant did not meet retention criteria in accordance with Army Regulation 40-501 and he recommended that the applicant be placed on a permanent profile with referral to an MEBD.

9.  On 9 March 2004, the applicant was assigned a permanent (P) profile rating of 3 due to an asthma medical condition.

10.  On 22 March 2004, the applicant’s commanding officer, 3274th United States Army Hospital, submitted a performance statement to the PEB recommending the applicant’s continuation in the AGR program within the continental United States (CONUS).  The applicant’s commanding officer stated that the applicant's P3 profile was due to moderate to severe asthma and that his assignment limitations were strenuous activity at his own pace and distance, no unit running, no prolonged exposure to dusty environments for greater than 2 hours, and no protective mask.  The commanding officer further stated that based on the applicant’s limitations, the applicant was able to perform the duties required of a Soldier in his grade and MOS as a 42A (Human Resources Specialist) in his current assignment; however, he may not be able to perform all of his duties in a table of organization and equipment unit in his secondary MOS of 88M.

11.  In the performance statement the applicant’s commander stated that the applicant passed his last APFT in October 2003 by completing a 2-mile run and that his medical condition had not caused him to be on any physical profiles until 9 March 2004.  He stated that the applicant had been to the emergency room twice for his asthma in the past year and a half and that it had not created an issue with his duty performance as he had been under treatment for asthma since 1992.  The commander stated that the applicant indicated on more than one occasion that the physician who was treating him advised that he should probably be medically boarded; however, no action was ever taken.  The commander explained that the applicant had recently been identified for possible mobilization in his secondary MOS of 88M, he was given a "NO GO" for medical reasons, and was mandated by the 81st Regional Readiness Command to go before an MOS Medical Review Board.  He stated that after reviewing the applicant’s physical profile and understanding his condition, he did not believe that the applicant was an asset for the Army outside the continental United States (CONUS); however, his exemplary duty performance in all areas did indicate he would and does serve well as a CONUS asset.  He recommended that the applicant be retained in a CONUS status.

12.  On 22 April 2004, an MEBD convened to determine whether the applicant should be referred to a PEB.  The MEBD diagnosed the applicant with persistent moderate to severe asthma and the MEBD recommended that he be referred to a PEB.  The applicant agreed with the MEBD findings and recommendation on 29 April 2004.

13.  A PEB convened on 14 May 2004 to determine if the applicant was physically unfit for retention in the Army.  The PEB diagnosed the applicant with asthma for which he was not fully compliant with medical management in that he was intermittently using Advair according to the Composite Health Care System/Pharmacy record.  Based on a review of the medical evidence of record, the PEB concluded that the applicant’s medical condition prevented his performance of duty in his grade and specialty.  The applicant was told that ratings of less than 30 percent for Soldiers with less than 20 years of active service require separation with severance pay in lieu of retirement and that the amount of severance pay would be based on his active service time and not on his disability rating.  The PEB found the applicant physically unfit for continued service with a combined disability rating of 10 percent.  The PEB recommended that he be separated with severance pay if otherwise qualified.  The applicant concurred with the PEB’s findings and recommendations and he waived his right to a formal hearing of his case.

14.  On 24 July 2004, the PEB’s findings of unfitness were approved and his case was forwarded to HRC for consideration of the applicant's request to remain in the AGR program as an exception to policy.  The Chief, Operations Division, USAPDA, recommended that the applicant’s continuation in the AGR program not be favorably considered due to his physical impairment as he would be a liability to his unit in a combat environment.  He stated that the applicant’s physical profile was very restrictive in that it did not allow him to wear a protective mask and all chemical defense equipment, as well as not permitting him to be exposed to dusty environments for more than 2 hours.  The Chief, Operations Division, stated that the applicant’s asthmatic condition placed him at a significant risk in a chemical or biological environment; therefore, his safety was in increased jeopardy in non-garrison environments as emphasized by his commander.  The Chief, Operations Division, stated that the applicant’s desire to continue serving in the Army Reserve was commendable; however, his chronic asthmatic condition precluded his continued service and that separation with severance pay was the correct disposition.

15.  On 5 September 2004, the applicant was notified that he was denied continuation in the AGR program.  The denial was based on his diagnosis of asthma which precluded him from performing his duty in accordance with Army Regulation 40-501, paragraph 3-27d.

16.  In email correspondence dated 21 September 2004, 4 October 2004, and 5 October 2004, the applicant contacted officials at Walter Reed Army Medical Center and HRC questioning the decision made by the PEB to separate him with severance pay and expressing his opinions regarding the Army Regulations and the Department of the Army Pamphlet used to diagnose him and separate him from the Army.  The responses to the applicant’s email correspondence, if any, are not available.

17.  The applicant was honorably discharged with severance pay on 23 December 2004 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability.  The available records show that he received $77,270.40 in severance pay and that he had completed 16 years, 1 month, and 13 days of net active service.

18.  On 22 September 2005, the applicant submitted an appeal to this Board requesting that he be reinstated on active duty in the USAR AGR program, be allowed to participate in the USAR in another status, be medically retired, or be granted a 15-year retirement.  His appeal was denied on 29 June 2006.

19.  In his 2 July 2007 request for reconsideration, he argues that the ABCMR only considered the fact that he was trained and served in a MOS 88M and that, in fact, he completed advanced individual training a second time to be awarded MOS 42A.  He argues that he also completed the advanced noncommissioned officer course for his 42A MOS which was his awarded MOS and duty MOS at the time of the proceedings.  He argues that the Board did not consider the fact he pointed out – that in accordance with Department of the Army Pamphlet    611-21, paragraph 10-217.1, a physical profile of 323222 is acceptable for MOS 42A – which he clearly met.  He states that the Board failed to acknowledge other facts he pointed out – that according to Army Regulation 40-501, paragraph 3-3c, a Soldier will not be referred to an MEBD or a PEB because of impairments that were known to exist at the time of acceptance in the Army – and that his physicals are proof that the USAR willingly accepted him into the AGR program knowing he had asthma.

20.  The applicant concludes his argument by stating that his new evidence may prove false statements were made by the medical doctor or members of the MEBD that was held at Fort Bragg, North Carolina, as his pulmonary test shows normal to moderate indications of asthma and statements made by the medical doctor and the MEBD were that he had moderate to severe asthma.  He argues that the statements were false and that his emergency room visits were proven to be panic attacks and not asthma attacks.

21.  In the self-authored letter dated 10 July 2007 that the applicant submitted to follow-up on his appeal of the decision made in his case, he basically reiterates the information contained in his 2 July 2007 request for reconsideration.

22.  In a self-authored letter dated 15 July 2008 the applicant asserts that he disputes the information presented to the MEBD by the doctor who evaluated him on 19 February 2004.  He states that he believes that the doctor intentionally made discriminating comments in reference to his Army service, made false statements regarding his performance of duties and ability to wear a protective mask, and stated that his asthma condition was worse than actual.  He states that the doctor twice referenced that he was a member of the Reserve, presently in an activated status; that the doctor stated that he had been having worsening symptoms and difficulty wearing his protective mask; that the doctor referred to him working as a truck driver; and that the doctor stated that he was unable to perform his military duties in his MOS and grade.  He states that all of these statements are false and that the Specialty Care Consult for the MEBD written by the doctor which was the basis for his MEBD, PEB, and discharge was particularly damning and exaggerated.  He states that there is no proof or supporting evidence to support the allegations made by the doctor and that the facts support the issue that the statements made by the doctor are false; therefore, his discharge was erroneous.  He contends that he should be granted full restitution within the limits of the law for this injustice.

23.  Department of the Army Pamphlet 611-21 provides that the Personnel Services Specialist participates in occupational classification and management of manpower resources or supervises personnel management of manpower resources or supervises personnel management activities to include maintaining officer and enlisted personnel records and processing personnel actions concerning service members and their family members.  Duties for MOS 42A4O include supervising a small personnel office, specific personnel functions, Battalion S1 and personnel services support activity, and performing duties of and supervising the functions of preceding skill levels to include quality assurance of products and advising commander, adjutant and other staff members on personnel administration activities.  For initial award of MOS 42A4O an individual must possess the following qualifications:  (1) physical demands rating of moderately heavy; (2) physical profile of 323222; (3) minimum score of 95 in aptitude area CL; (4) type at a minimum speed of 20 net words per minute; and (5) mandatory formal training (completion MOS 42A course conducted under the auspices of the U.S. Army Adjutant General School).

24.  Army Regulation 40-501, paragraph 3-3c, provides that a Soldier will not be referred to an MEBD or a PEB because of impairments that were known to exist at the time of acceptance in the Army and that have remained essentially the same in degree of severity and have not interfered with successful performance of duty.

25.  Army Regulation 635-40 provides that despite any other provisions of this regulation, after a Soldier has been enlisted, inducted, and appointed or commissioned, the Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier's performance of effective military service.

26.  Army Regulation 635-40 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.  A Soldier determined unfit due to physical disability by the Physical Disability Evaluation System may be deferred from disability separation or retirement when it is determined that the Soldier can still serve effectively with proper assignment limitations.  The Secretary of the Army or his designee may direct an involuntary continuation on active duty or continuation on active Reserve status when the Soldier's service obligation or special skill and experience justify an involuntary continuation.

27.  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 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.
28.  Title 10, U. S. Code, section 1315 provided the temporary early retirement authority (TERA) for the active force for the period 23 October 1992 through     31 December 2001.  The Secretary of the Army could authorize a member with at least 15 but less than 20 years of creditable service a length of service retirement.  The Army last utilized this provision of the law during fiscal year 2001 but only for members who were recommended for discharge due to physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be reinstated on active duty in the USAR AGR program, be allowed to reenter the USAR in another status, be medically retired, or be furnished a 15-year early retirement.

2.  His contentions have been noted and while a few of the medical documents that he submitted show that his asthma was moderate, according to the doctor that evaluated him on 19 February 2004, the applicant reported that the symptoms of his asthma had been getting worse, that he was having difficulty wearing his protective mask, that he was unable to perform the military duties of his MOS and grade due to his asthma symptoms, and that he required rescue Albuteral use on a daily basis.  Additionally, the applicant’s doctor and his commanding officer stated that he had been hospitalized twice within 18 months as a result of his asthma, which was moderate to severe.

3.  While he may have met the criteria for award of MOS 42A4O in May 2002, he has provided insufficient evidence to support his contentions that the doctor’s evaluation of his condition on 19 February 2004 was false or untrue.  The fact that the doctor twice referenced him as a member of the Reserve presently on an activated status requiring duties in the field as a truck driver does not substantiate his contention that his discharge was erroneous.

4.  The applicant’s contention that according to Army Regulation 40-501 a Soldier will not be referred to an MEBD or a PEB because of impairments that were known to exist at the time of acceptance in the Army has also been noted.  However, the same regulation refers to impairments that have remained essentially the same in degree of severity and have not interfered with the successfully performance of duty, which does not appear to be applicable in the applicant's case.  According to his own statement made to the attending doctor, he was unable to perform the military duties of his MOS and grade due to his asthma symptoms.



5.  The applicant contended that he could perform duties in his primary MOS of 42A.  However, his commanding officer stated that the applicant's assignment limitations were strenuous activity at his own pace and distance, no unit running, no prolonged exposure to dusty environments for greater than 2 hours, and no protective mask.  Had he been scheduled for deployment in his primary MOS, he would have been sent to a dust environment

6.  The MEBD and the PEB considered all of the available evidence at the time of his evaluations and determined that his asthma condition was worsening and that he should be separated due to physical disability.  He waived his rights to a formal PEB where he could have raised his current contention that he was able to perform duties in his primary MOS of 42A; however, he concurred with the findings and recommendations made by both boards; and he was furnished severance pay in the amount of $77,270.40 as a result of his interrupted service.

7.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

8.  There is no evidence in the available records that suggests that any of his rights were violated during the MEBD or the PEB process.  Therefore, there is no basis for voiding his discharge and reinstating him to active duty.

9.  The applicant has provided insufficient evidence and/or argument to support his contentions that he should be reinstated on active duty in the USAR AGR program, be allowed to reenter the USAR, be medically retired, or be furnished a 15-year retirement.

10.  As the applicant was on active duty in the AGR and not in the Selected Reserve, he was not eligible for a 15-year letter (a Reserve retirement at age 60), and the TERA had expired in 2001.

11..  In order to justify correction of a military record the applicant must show 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.

12.  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 to amend the decision of the ABCMR set forth in Docket Number AR20050014791, dated 29 June 2006.



      ________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)                                         AR20080014915



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ABCMR Record of Proceedings (cont)                                         AR20080014915



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