IN THE CASE OF:	  

		BOARD DATE:	       26 February 2009

		DOCKET NUMBER:  AR20080017059


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, correction of his military records to show that he was retired due to a physical disability. 

2.  The applicant states that he believes his discharge under the provisions of National Guard Regulation (NGR) 600-200, paragraph 8-27(i) is wrong.  He contends that he was injured and not afforded a medical evaluation board (MEB). A line of duty (LOD) was completed showing that he injured his lower back.  He was given a medical profile and sent home.  Later he was involved in a traffic accident and injured his neck and right leg.  Again he was placed on a temporary physical profile and told not to report for duty until his follow up appointment with the military doctor.  He remained on physical profile until his cast was removed.  He was told that he would be medically evaluated since he had over 15 years of service for retirement.  The applicant contends also, that he should have over 
24 years of service for retirement.  

3.  The applicant provides, in support of his application, copies of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214); Report of Separation and Record of Service effective 10 February 2000 showing 15 years, 4 months, and 4 days of service for retired pay; a 13 page letter of support from the applicant's wife; a California Life Line Verification Form; 
DA Form 2173 (Statement of Medical Examination and Duty Status), dated 
17 July 1981, with three witness statements [one statement was written in 2008]; Department of Veterans Affairs (VA) Rating Decision, dated 30 December 1981; DA Form 2173, dated 19 November 1986; VA Medical Certificate, dated
5 November 1988; VA Medical Certificate, dated 7 January 1989, with four statements; three prescription forms dated 7,17, and 27 January 1989; Orders 47-12, State of Montana, dated 16 March 1989; VA Rating Decision, dated 
22 September 1989; VA Medical Certificate, dated 15 January 1993; letter from family physician, dated 1 December 1993; VA Medical Certificate, dated 23 May 1994; and a letter from the applicant's physician, dated 23 June 1999.

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's NGB Form 22 and NGB Form 23B, as contained in his Official Military Personnel File (OMPF), shows:

   a.  The applicant enlisted in the Montana Army National Guard on 1 July 1972.  He completed his initial training and was awarded military occupational specialty (MOS) 76A (Supply).    

   b.  On 1 July 1974, the applicant was transferred to the United States Army Reserve Control Group (Reinforcement).  On 21 December 1974, he was transferred to Control Group (Retired).  

   c.  Effective 1 July 1978, the applicant was discharged from the military.

   d.  Effective 5 June 1981, the applicant enlisted as a member of the Montana Army National Guard.   He served with the 3669th General Support Maintenance Company.  His supply MOS was re-designated as 92Y (Unit Supply Specialist). In 1985, he was awarded MOS 63W (Wheeled Vehicle Mechanic).  In 1994, he was also awarded MOS 63H (Track Vehicle Repairer).

   e.  On 13 June 1988, the applicant was promoted to the rank of sergeant, pay grade E-5.

   f.  Effective 10 February 2000, the applicant was discharged from the Montana Army National Guard under the provisions of NGR 600-200, paragraph 8-27(i) due to failure to reply to or to accept official correspondence, travel orders, or forms, characterization of service was honorable.  (His NGB Form     22 was apparently later reissued, showing his reason for discharge as NGR 600-200, paragraph 8-27(i), failure to obtain required physical).  He had completed a total of 24 years, 8 months, and 6 days of service for pay, and had 17 qualifying years for retirement.

3.  A review of the applicant's supporting documents shows:

	a.  According to a DA Form 2173, dated 17 July 1981, the applicant fell down a flight of stairs and injured his tail bone.  At the time, he was on annual training in the Federal Republic of Germany.  A formal line of duty was required and his injury was considered to have occurred in the line of duty.

	b.  A VA Rating Decision, dated 30 December 1981, awarded the applicant service connection for a back injury that occurred in July 1981 while on active duty.  He was granted zero percent disability for this injury.

	c.  DA Form 2173, dated 19 November 1986, shows the applicant was admitted to Fort Benjamin Harrison VA Medical Center with lacerations of the head and right hand, and ligament tears of the right leg.  The report further states that these injuries were the result of a car accident and were found to be in the line of duty.

	d.  The VA Medical Certificate dated 5 November 1988 reports that the applicant complained of severe back pain stemming from a long term injury 
20 years or more) causing him trouble walking and with getting up out of a chair.  

   e.  The VA Medical Certificate, dated 7 January 1989, reported that the applicant "slipped on floor and fell today landing on back."  He complained of low back pain and mild numbness in right leg.  He stated that he had pain prior to the fall but it was somewhat more intense after the fall.  
   
   f.  Orders 47-12, State of Montana, dated 16 March 1989, ordered the applicant to report to Madigan Army Medical Center, Tacoma, Washington with a report date of 6 April 1989 for the purpose of being medically evaluated for retention based on his back injury.  
   


   g.  VA Rating Decision, dated 22 September 1989, rated the applicant's back injury at 10 percent disabling.  
   
   h.  The VA Medical Certificate dated 15 January 1993, reports the applicant suffered from back pain, right leg pain, and a weak grip in his right hand.  The report further states that the applicant needed a medical examination to determine whether he should or should not work.
   
   i.  On 1 December 1993, the applicant's family physician wrote a letter to the applicant's training noncommissioned officer; wherein, he stated that the applicant should not participate in any strenuous physical testing.  He also stated that the applicant should have further evaluation by an orthopedic specialist.
   
   j.  On 23 June 1999, the applicant's doctor (internal medicine/ gastroenterology) wrote a letter to whom it may concern, stating that the applicant was under treatment for low back pain secondary to several spinal injuries.  It was imperative that the applicant limit activities that put undue stress on the spine such as lifting bags, cans, boxes, etc.
   
   k.  The applicant's wife has provided a 13 page statement detailing the events and medical difficulties of the applicant from 1996 through 2008.      

4.  The applicant’s service medical records are not available for review.

5.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of a physical disability.  In each case, it is necessary to compare the nature and degree of a physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

6.  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 a disability incurred while entitled to basic pay.

7.  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, in effect, that he should receive a medical retirement.  He further contends that he was not afforded the opportunity to be evaluated by an MEB.

2.  The available evidence shows the applicant was ordered to report to Madigan Army Medical Center for evaluation of his back pain in 1989.  However, there is no evidence showing that he complied with these orders or, if he did, what the results of the evaluation were.  

3.  The available evidence shows he was separated from the Montana Army National Guard and as a Reserve of the Army in February 2000 due to failure to reply to or to accept official correspondence, travel orders, etc (or due to failure to obtain a required physical).  

4.  The applicant’s VA rating decision shows his service connected physical disability is rated 10 percent disabling; however, there is no available evidence showing that the applicant was found unfit to perform his military duties.

5.  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.

6.  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)                                         AR20080009694



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ABCMR Record of Proceedings (cont)                                         AR20080017059



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