BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090000463 


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 reconsideration of his earlier request to change his separation to a medical retirement.  As a new issue, he requests he be issued a 15-year letter.

2.  The applicant states that he was erroneously discharged due to expiration term of service (ETS).  He is 100 percent disabled due to injuries sustained in Desert Storm.  He also states that, at the time, it was not explained to him that he may be eligible for retirement at age 60.  

3.  In support of his application, the applicant provides copies of his 1990 mobilization orders and unit attachment orders, his 1992 DD Form 214 
(Certificate of Release or Discharge from Active Duty), his DD Form 215 (Correction to DD Form 214), his 1966 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his Army National Guard (ARNG) discharge orders, a letter written to the Environmental Support Group with electronic mail correspondence, letters from the Department of Veterans Affairs (VA), his 1997 ABCMR Memorandum of Consideration, ARNG Current Annual Statement and Retirement Points Statement Supplemental Detailed Report, and a letter from the National Guard Bureau (NGB).

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.  ABCMR Docket AC94-12762 previously denied the applicant's request to change his separation to a medical retirement on 29 January 1997.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The applicant's request for reconsideration of his request to change his separation to a medical retirement was not received within one year of the ABCMR's original decision.  His request for reconsideration does not meet the criteria outlined above.  In view of the above the issue of his request for a medical retirement will not be discussed further in these proceedings.  

3.  The applicant enlisted in the Massachusetts ARNG (MAARNG) in pay grade E-5, on 30 December 1981, with prior enlisted service in the U.S. Coast Guard.  He completed training and was awarded primary military occupational specialty (MOS) 88M (Motor Transport Operator) and secondary MOS 95B (Military Policeman).

4.  A Statement of Medical Examination and Duty Status, dated 11 March 1990, shows the applicant was admitted to a civilian hospital as a result of a laceration to his left eyelid when the plastic portion of a simulator blew back and shattered his eyeglass frames while on inactive duty training.  On 14 March 1990, a line of duty determination was approved for this incident.

5.  On 19 September 1990, the applicant was ordered to active duty in support of Operation Desert Shield/Storm and entered active duty on 20 September 1990.

6.  On 22 November 1991, a Medical Evaluation Board (MEB) convened and considered the applicant’s diagnosis of bilateral hallux rigidus with first toe, arthritis, hypertension, hypercholesterolemia, and retinoschisis and referred the applicant to a Physical Evaluation Board (PEB). 

7.  On 3 January 1992, the applicant did not concur with the MEB, commented on the origin of the diagnosis of retinoschisis, and stated that his feet were swollen and he did not have the mobility of his feet.  On 7 January 1992, upon review of the applicant’s comments the MEB affirmed its prior MEB findings.  

8.  On 7 February 1992, an informal PEB convened and found the applicant physically fit to perform the duties of his office, grade, and MOS.  On 20 February 1992, the applicant non-concurred with the PEB and requested a formal hearing.

9.  On 2 April 1992, an MEB addendum addressed the applicant’s feet and indicated that problems were still present.  

10.  On 14 May 1992, the applicant waived his right to a formal PEB.

11.  On 21 May 1992, the US Army Physical Disability Agency approved the findings of the applicant’s informal PEB.  Neither the MEB and PEB noted any history or physical finding suggestive of Parkinson’s Disease.

12.  The applicant was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), on 4 August 1992, on his ETS date, and reverted back to the MAARNG.  

13.  The applicant ARNG Current Annual Statement, dated 3 August 1992, shows he was credited with 16 years, 6 months, and 24 days creditable service for retired pay as of 31 May 1992.

14.  On 29 January 1993, the VA rated the applicant at 10 percent for retinoschisis of the right eye and post-traumatic retinal detachment; 10 percent for hypertension; and 10 percent, each, for residuals of bunionectomy for a total of 40 percent.  

15.  A VA Form 10-10M, dated February 1993, shows a medical doctor noted the entry, “has this man been evaluated re: ? Parkinson’s Disease.”

16.  The applicant was honorably discharged from the MAARNG on 1 May 1993, due to a hardship discharge.  

17.  On 2 May 1993, the applicant advised the MAARNG that he was receiving 40 percent disability from the VA and he did not wish to waive his compensation in lieu of drill pay.

18.  On 16 August 1993, the VA established presumptive service connection for Parkinson’s disease with an effective date of 22 February 1993.
19.  On 1 September 1993, the VA advised the applicant that he had been awarded service-connected disability for Parkinson disease and rated 100 percent.  In a letter, dated 1 December 1993, the VA stated that the applicant was receiving care from the Parkinson Clinic at Boston VA Medical Center for Parkinsonism, was presently disabled, and was expected to remain disabled for the rest of his life.  

20.  The applicant reached age 60 on 23 August 2000.

21.  The applicant’s ARNG Current Annual Statement, dated 6 June 2008, shows he had completed 18 years, 6 months, and 5 days creditable service for retired pay as of 1 May 1993.

22.  On 12 August 2008, the NGB advised the applicant, in effect, that his records indicated he was separated on 1 May 1993 with 18 years, 6 months, and 5 days of service and he needed 20 years of qualifying service to receive retirement at age 60.  He was also advised that due to the nature of his service and documents provided by the VA, it was believed he may have a case for the ABCMR.

23.  Title 10, U.S. Code, section 12731a (Temporary Special Retirement Qualification Authority), which became effective 5 October 1994, specifies that a member of the Selected Reserve who has completed at least 15 years but less than 20 years of service may be entitled to temporary special retirement qualification when they no longer meet the qualifications for membership in the Selected Reserve solely because the member is unfit because of a physical disability, not due to misconduct, on or after 5 October 1994.  Under this provision, Soldiers who complete at least 15 but less than 20 years of qualifying service and are deemed medically disqualified for retention are eligible for received retired pay at age 60.  The amount of retired pay is based on the total number of qualifying years of service at time of removal rather than the 20 years normally required.

24.  Title 10, USC, section 12731a(a)(1) was amended to extend the Early Reserve Retirement Eligibility for Disabled Members to the period beginning 23 October 1992 and ending on 1 October 1999 to Soldiers were attained 15 years of retirement eligibility after 1 October 1991.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in February 1993, after being seen in a VA clinic, an examining physician noted in the applicant’s clinic record “has this man been evaluated re: ? Parkinson’s disease.”  The applicant was discharged from the MAARNG on 1 May 2003 based on his request for a hardship discharge.  He had advised the MAARNG that he preferred VA disability pay over drill pay and at that time there was no known basis for a medical retirement.  On 13 August 1993, he was given a presumptive service connection for Parkinson’s Disease by the VA, with an effective date of 22 February 2003, and assigned a 100 percent disability rating.  

2.  Based on the evidence in this case, it can be concluded that the applicant was symptomatic of early Parkinson’s Disease while still a member of the MAARNG.  It is also concluded that if the MAARNG had known about the applicant’s Parkinson’s Disease prior to his discharge, he would have ultimately been medically separated for being medically unfit.  

3.  The 15-year retirement law was not passed until 5 October 1994; however, it was subsequently made retroactive to 23 October 1992.  Therefore, it would be equitable to now show that the applicant met the eligibility requirements for completion of 15 years of qualifying service for eligibility for retired pay at age 60, based on his disability of Parkinson’s Disease prior to his discharge from the MAARNG.

4.  It would now be equitable and just to correct his military records by showing he is eligible for retired pay.

5.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

BOARD VOTE:

__x_____  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

     a.  showing the applicant was eligible to apply for early qualification for retired pay at age 60, that he so applied prior to turning age 60, and that his application was approved and appropriately processed in a timely manner;

     b.  paying to the applicant all due retired pay retroactive to the date he turned age 60.




      _______ _   __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)                                         AR20090000463



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ABCMR Record of Proceedings (cont)                                         AR20090000463



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