IN THE CASE OF:	

		BOARD DATE:	      24 March 2009

		DOCKET NUMBER:  AR20080016863 


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 correction of her military records to show that she was retired due to physical disability.

2.  The applicant states, in effect, that she was injured while on active duty.  However, she contends that many of her medical problems were not addressed prior to her discharge.  She states that her medical problems included asthma, back injury, sarcoidosis of the lung, gynecological problems, borderline hypertension, migraines, heart problems, ankle fracture, back problems, borderline diabetes during pregnancy, right arm injury, and tendonitis.

3.  The applicant provides no documentation in support of her application. 

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.  On 28 January 1986, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty 75D (Personnel Records Specialist).

3.  The applicant performed duty as a personnel records specialist with the Regional Personnel Center in the Federal Republic of Germany from 26 June 
1986 to her return to the United States on or about 14 June 1988.

4.  On 25 July 1988, the applicant was assigned for duty as a personnel records specialist with the 4th Personnel Services Company, Fort Carson, Colorado.

5.  On 26 January 1990, the applicant reenlisted for another 3 years.

6.  On 26 October 1990, the applicant sustained a traumatic injury to her right shoulder while lifting a file cabinet.  She reported to sick call the next day and was subsequently referred to the hospital outpatient department.  X-rays were taken and she was referred for magnetic resonance imaging (MRI) evaluation.  She was diagnosed with a severe tendonitis or partial tear, displacement of the distal clavicle, and fluid in the joint and surrounding the tendon of the long head of the biceps.  She was placed on a physical profile that provided for no physical fitness training, no lifting, and no overhead work.

7.  During the period from 15 March 1991 to 16 June 1991, the applicant was hospitalized for extensive physical therapy.  This program did not result in any significant improvement of her medical condition.

8.  On 28 April 1992, a medical evaluation board (MEBD) convened to evaluate the medical condition of the applicant.  It found that she had the following medical conditions:  severe chronic right shoulder pain, chronic tendonitis, chronic bursitis of the right shoulder, and prophylactic anti-tuberculosis chemotherapy.  The MEBD recommended that she be referred to a physical evaluation board (PEB).  The applicant did not present any views on her own behalf.  She indicated that she did not desire to continue on active duty.  The findings and recommendation of the MEBD were approved.  The applicant signed the MEBD findings and recommendation but did not indicate agreement or disagreement.

9.  On 2 June 1992, a PEB convened to consider the applicant’s medical condition.  It found that she suffered from chronic pain of the right shoulder with tendonitis and bursitis, rated at 20 percent disabling.  The diagnosis of prophylactic anti-tuberculosis chemotherapy was found to be not unfitting and not ratable.  The PEB found the applicant to be physically unfit and recommended a combined disability rating of 20 percent and that she be separated with severance pay, if otherwise qualified.  The applicant concurred and waived a formal hearing.  The applicant was counseled as to her legal rights pertaining     to the PEB.  Both the applicant and counselor signed the proceedings on            5 June 1992.

10.  Accordingly, on 1 July 1992, the applicant was discharged due to physical disability and awarded severance pay.  She had attained the rank of specialist, pay grade E-4, and had completed 6 years, 5 months, and 4 days of creditable active duty service.

11.  The applicant's service medical records were not available for review.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), appendix B (Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities), paragraph B-3f, provides that conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless the conditions contribute to the finding of unfitness.

13.  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 or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should be granted a medical retirement based on her medical condition at the time of her discharge.  She further contends that all of her medical conditions were not evaluated at the time.

2.  The available evidence clearly shows that the applicant was medically disabled and was evaluated by an MEBD and PEB.  The MEBD found only her shoulder pain with tendonitis and bursitis and her prophylactic anti-tuberculosis chemotherapy to be medically unacceptable and referred her to the PEB.  The PEB found only her shoulder pain with tendonitis and bursitis to be medically unfitting for military service and recommended separation with a 20 percent disability rating.  The applicant was counseled regarding her legal rights.  She concurred with the findings and recommendation of the PEB and waived a formal hearing.  Accordingly, she was discharged with severance pay.

3.  The applicant has not provided any documentary evidence to substantiate her claim that the Army did not properly evaluate all of her medical conditions.  Furthermore, she concurred with the PEB findings and recommendation.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the above, the applicant’s request should be denied.

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)                                         AR20080016863



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016863



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1