IN THE CASE OF:	

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080015402 


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 22 May 1991 discharge orders be revoked, that he be transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for the purpose of promotion to major, and that he be returned to the Retired Reserve in the grade of major.  He also requests a Medical Evaluation Board (MEB).

2.  The applicant states, in effect, that the administrative hold on his promotion to major should be lifted and that the Office of Promotions, U.S. Army Human Resources Command, St. Louis, Missouri (HRC-STL) provided an advanced advisory opinion that may be of assistance to the Board.  He contends that on 
30 August 1990 he requested an MEB and he clearly outlined all nine of his disabilities as being service-connected disabilities associated with his active military service.  He also contends that he should be medically retired due to medical disqualification as a result of injuries/illnesses incurred in the line of duty.  He points out that his injuries and illnesses were received while he was on active duty and that the Department of Veterans Affairs found his disabilities to be service-connected.  He further states that it is his belief that several Army Regulations were misapplied in his case.

3.  The applicant provides an Advanced Advisory Opinion, dated 1 August 2008, from HRC-STL; a DD Form 214 (Report of Separation from Active Duty) for the period ending 20 August 1975; a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 July 1989; service medical records; a letter, dated 9 June 2008, from HRC-STL; discharge orders, dated 
22 May 1991; a Department of Veterans Affairs (DVA) letter, dated 10 August 1990; a letter, dated 30 August 1990; a memorandum, dated 4 April 1991; DVA documentation; a letter, dated 1 May 1991, from the U.S. Army Reserve Personnel Center, St. Louis, Missouri; a letter, dated 3 September 2008, from the HRC-STL; letters, dated 26 June 2008 and 22 April 1991; a letter, dated 6 March 2007, from the Army Board for Correction of Military Records; and his 2006 application for correction of military records with supporting documents.        

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.  Having prior active service, the applicant enlisted in the USAR on 21 August 1975 for the Reserve Officers’ Training Corps Scholarship Program.  He was appointed a second lieutenant in the USAR on 14 May 1977.  He entered active duty on 29 October 1977 and was promoted to captain on 14 June 1981.  

3.  On 10 March 1989, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of 112111.

4.  The applicant was released from active duty on 1 July 1989 due to nonselection for permanent promotion. 

5.  The applicant provided a letter, dated 10 August 1990, which shows the DVA granted his claim for service-connected disability compensation for internal derangement of right ankle, postoperative status, with limitation of motion; left chondromalacia patella, post-traumatic, with healed fracture of left fibula; injury to left foot with sensory impairment and retained foreign bodies and soft tissues of foot; hypertension with left cardiomegaly and aortic regurgitation, normal hear output; recurrent low back strain with early x-ray changes of secondary arthritis; and persistent bilateral tinnitus secondary to acoustic trauma. 

6.  The applicant provided a letter, dated 30 August 1990, he wrote to the U.S. Army Reserve Personnel Center, St. Louis, Missouri requesting an MEB and transfer to the Retired List for disabled officers. 

7.  Apparently in 1990, the applicant was selected for promotion to major by the 1990 Department of the Army Reserve Components Selection Board.  

8.  There is no evidence of record which shows the applicant appeared before an MEB. 

9.  On 4 April 1991, the applicant was notified of his medical disqualification in the USAR due to arthritis of right ankle, status post surgery, and internal derangement of right ankle.  He was advised that he must elect discharge from the USAR, transfer to the Retired Reserve, or request a waiver for retention.  The applicant elected transfer to the Retired Reserve; however, he crossed out "Reserve" and wrote "List (Medical Disability)."  

10.  On 22 May 1991, the applicant was transferred from the USAR Control Group (Reinforcement) in the rank of captain for being medically disqualified for retention and transferred to the Retired Reserve.    

11.  The applicant's Officer Evaluation Reports are not available. 

12.  The applicant provided an advanced advisory opinion, dated 1 August 2008, from the Chief, Special Actions Office of Promotions Reserve Component, HRC-STL.  The opinion states that after reviewing the additional matters submitted by the applicant, together in consultation with the local Office of the Command Judge Advocate and Office of the Command Surgeon, that office is of the opinion that the applicant met the criteria for promotion in 1990 and should have been promoted to major in 1990 with an effective date of 23 March 1990.    

13.  The advisory opinion states that when the Office of Promotions gave its initial advisory opinion it did not have a copy of the active duty physical that the applicant had been given just prior to his release from active duty on 1 July 1989.  That physical information was never updated in the database of HRC-STL, so that office could not promote him from his selection by the 1990 Department of the Army Reserve Components Selection Board.  Based on the results of the applicant's physical and had that information been updated in the HRC database, the Office of Promotions would have promoted him to major with a date of rank of 2 July 1989 and an effective date of 23 March 1990, the adjourning date of the board.  

14.  The advisory opinion recommends that the applicant's retirement order be revoked, that the applicant be reassessed into the Control Group (Reinforcement) so the Office of Promotions can promote him, and then the applicant immediately be returned to the Retired Reserve in the grade of major based on his medical disqualification.

15.  Army Regulation 135-155 (Promotion of Commissioned officers and Warrant Officers other than General Officers), in effect at the time, stated that an officer who had been recommended for promotion to the next higher grade must have met several listed requirements before being promoted, including being medically qualified.  

16.  Title 38, U. S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

17.  Title 10, U. S Code, chapter 61, provides 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.

18.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  

19.  Army Regulation 635-40, in effect at the time, also stated, in pertinent part, that Soldiers of the Reserve Component eligible for disability processing were those who incurred a disability from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training with or without pay, temporary tour of active duty under a call or order that specifies a period of 30 days or less, to include full time training duty, or inactive duty training.  A Soldier not on extended active duty who is unfit because of physical disability will be separated without benefits when the disability was not incurred or aggravated as the proximate result of performing duty.  

DISCUSSION AND CONCLUSIONS:

1.  Based on the 1 August 2008 recommendation from the Chief, Special Actions Office of Promotions Reserve Component, HRC-STL, it would be appropriate to revoke the applicant's 22 May 1991 discharge orders and transfer him to the USAR Control Group (Reinforcement) for the purpose of promotion to major.  The recommendation also states that after the applicant is promoted to major, he should be returned to the Retired Reserve.  

2.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability.  

3.  There is no evidence of record which shows the applicant met the criteria for disability processing.  Since he was found qualified for separation on 10 March 1989, and he met the criteria for promotion to major (i.e., being medically fit) in 1990, it appears he was not eligible for physical disability processing (i.e. an MEB).

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 all Department of the Army records of the individual concerned be corrected by:

	a.  voiding the applicant's 22 May 1991 orders transferring him to the Retired Reserve;

	b.  reassessing him into the USAR Control Group (Reinforcement) for the purpose of promotion to major with a date of rank of 2 July 1989 and an effective date of 23 March 1990; 
	c.  after he is promoted to major, transferring him to the Retired Reserve effective 22 May 1991; and

     d.  reviewing his finance records to see if he is due any pay and allowances as a result of the above correction and, if so, paying to him all due pay and allowances.  

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 a request for an MEB.  




      _______ _  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)                                         AR20080015402





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ABCMR Record of Proceedings (cont)                                         AR20080015402



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