IN THE CASE OF:	  

		BOARD DATE:	  16 April 2009

		DOCKET NUMBER:  AR20080017746 


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 her record be corrected to show she was medically discharged/retired.

2.  The applicant states, in effect, that there was no follow-up to a recommendation that she be evaluated by a Medical Evaluation Board and physical evaluation board (PEB) made in a physical profile she was issued on 27 October 2004.  She also claims that no consideration was given to granting her a 15-year retirement and/or additional drill points and that there were irregularities in the promotion consideration for major (MAJ) in 1995, which she later received in 1997.  She also outlines her assignment history between 1997 and 2003, and indicates she suffered a civilian work place injury in 2000 that resulted in several complications that negated her medical release to return to work. 

3.  The applicant provides the 43 enclosures (70 pages) identified in the indexed attachment included with her application in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she was commissioned a second lieutenant in the United States Army Reserve (USAR) on 24 August 1983.  She was promoted to first lieutenant on 24 August 1984, to captain on 22 August 1990, and to MAJ on 11 March 2005.

2.  The applicant's record contains an ARPC Form 249-E (Chronological Statement of Retirement Points), dated 13 June 2008, which shows she completed a total of 16 years of qualifying service for retirement as of retirement year ending 23 August 2000.

3.  On 31 October 2000, the applicant was released from her Selected Reserve troop program unit (TPU) assignment to the 3297th United States Army Hospital, Fort Gordon, Georgia, and assigned to the Individual Ready Reserve (IRR) based on unsatisfactory participation.

4.  On 27 December 2006, the United States Army Human Resources Command, St. Louis (HRC-St. Louis), Missouri, published Orders C-12-640498 directing the applicant's release from the IRR and transfer to the Standby Reserve (Inactive List) effective 27 December 2006 based on the applicant's failure to provide a military service obligation (MSO) election.  The additional instructions in the orders indicated that the applicant would be discharged or transferred to the Retired Reserve (if eligible) 1 year from the effective date of the orders unless she provided the MSO election form requesting to remain in the IRR.

5.  On 14 January 2008, HRC-St. Louis published Orders D-01-801983 which directed the applicant's honorable discharge from the USAR effective 14 January 2008.  The additional instructions of these orders indicated the applicant failed to provide an MSO election form as required by Department of Defense Directive (DODD) 1235.13.

6.  The applicant's record is void of any medical records or documents that indicate she was ever determined to be unfit for further service by competent medical authority prior to her discharge.

7.  The applicant provides several medical treatment records from various civilian and Department of Veterans Affairs (VA) sources.  She also provides a Standard Form 513 (Medical Record Consultation Sheet), dated in 2008, which identifies several service-connected conditions she suffers from and a disability rating assigned by the VA, and a memorandum, dated 25 May 2005, from the USAR Surgeon's Office at HRC-St. Louis that indicates she requested and was being processed for a non-duty related fitness determination by a PEB.  Paragraph 2 of a Counseling Guide enclosed with the memorandum stated in part, "RC members should only request referral to the PEB if they believe they can perform heir duties despite their medical condition."  However, no documents related to the final outcome of this process were provided, and none are on file in her record.

8.  DODD 1235.13 provides the policies for the management of the IRR and Inactive National Guard Programs.  Paragraph 4-5 stipulates that officers who have fulfilled their MSO and have not taken action to elect to remain in the IRR shall be advised of the requirement to remove them from the military.  The Military Departments shall remove those officers from the military within 2 years after fulfillment of the officers' MSO unless they positively elect to remain in the IRR past their MSO.

9.  Title 10 of the United States Code, section 12731, provides the age and service requirements for non-regular Reserve retirement.  It states, in pertinent part, that members qualify to receive non-regular Reserve retirement pay at age 60 upon completion of 20 qualifying years of service.  Section 12731b provides a special retirement rule for members with physical disabilities.  It states, in pertinent part, that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the service requirements for eligibility for non-regular retired pay at age 60 upon completion of at least 15 and less than 20 years of qualifying service.

10.  Army Regulation 40-501 (Standards of Medical Fitness) contains guidance on medical fitness standards.  Paragraph 9-10 contains guidance on the disposition of medically unfit Reservists.  It states, in pertinent part, that normally Reservists who do not meet fitness standards will be transferred to the Retired Reserve or discharged from the USAR.  It further stipulates that Reservists with non-duty related medical conditions who are pending separation for not meeting medical retention standards may request referral to the PEB for a determination of fitness.

11.  Paragraph 9-12 of Army Regulation 40-501 contains guidance on requesting a PEB evaluation and states, in pertinent part, that RC Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to the PEB for a determination of fitness.  It further indicates that once a Soldier requests a PEB, the case will be forwarded to the PEB by the United States Army Reserve Command (USARC) Regional Support Command or the HRC-St. Louis Command Surgeon's Office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

13.  Chapter 8 of the PDES regulation contains the rules and policies for disability processing of RC Soldiers.  It states, in pertinent part, that an RC Soldier will be referred for medical processing through the PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  It further stipulates that in order for Soldiers of the RC to be compensated for disabilities incurred while performing duty for 30 days or less, there must be a determination made by the PEB that the unfitting condition was the proximate result of performing duty.

14.  The PDES regulation specifies that this fitness determination is different from a line of duty determination which establishes only whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a casual relationship between the disability and the required military duty.

15.  Title 38, United States Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her record should be corrected to show she was medically retired/discharged was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms the applicant last served in a TPU of the Selected Reserve on 30 October 2000 and that she was transferred to the IRR on 31 October 2000.  



3.  The applicant provides several medical treatment records from civilian and VA sources.  She also provides a memorandum from the USAR Surgeon's Office, dated 25 May 2005, that indicates she requested and was being processed for a non-duty related fitness determination by a PEB.  However, there are no documents on file or provided by the applicant that confirm the final outcome of this process.  In addition, in accordance with paragraph 2 of the accompanying Counseling Guide, the fact the applicant requested a fitness determination indicates she believed she was medically fit to perform her duties.  Absent any evidence that a fitness determination on the applicant was made by the PEB, there is an insufficient evidentiary basis to support a conclusion that she suffered from a disqualifying medical condition that rendered unfit for further service at the time of her discharge from the USAR.

4.  In addition, the provision of law that provides for qualification for non-regular Reserve retired pay at age 60 based on 15 years of qualifying service due to a physical disability is applicable only to members of the Selected Reserve.  Given the applicant had last served in the Selected Reserve in 2000 and was in the Standby (Inactive) Reserve at the time of her discharge in 2008, she was not eligible for retirement under this provision of the law.

5.  The evidence of record further shows that on 27 December 2006 she was transferred from the IRR to the Standby Reserve (Inactive List) based on her failure to complete her MSO election to remain in the IRR and that she was ultimately discharged from the USAR for this reason on 14 January 2008.

6.  The applicant is advised that by law and regulation in order for an RC Soldier to be compensated for disabilities incurred while performing duty for 30 days or less, there must be a determination made by the PEB that the unfitting condition was the proximate result of performing duty.  Absent any evidence that the applicant received a fitness determination from the PEB that established her eligibility to be processed for compensation through the PDES, the proper agency to evaluate, treat, and compensate her for service-connected conditions that were not determined to be unfitting for further service is the VA.

7.  Absent any evidence that the applicant suffered from an unfitting medical condition that was the proximate result of her performing duty at the time of her discharge from the USAR, it appears she is properly being evaluated, treated, and compensated for her service-connected medical conditions by the VA.



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)                                         AR20080017746



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ABCMR Record of Proceedings (cont)                                         AR20080017746



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