IN THE CASE OF:	  

		BOARD DATE:	  01 July 2009

		DOCKET NUMBER:  AR20090001609 


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 that his discharge status be changed to a medical discharge or a medical retirement.  

2.  The applicant states that his recruiter told him that the code on his current discharge does not show "medical" as the classification of his discharge.  He contends that his discharge status should be "medical" or "retired" and he should be able to reenlist since he has received a waiver for his disability.  He states he was medically discharged secondary to a left shoulder injury through a Medical Evaluation Board (MEB).  His documentation shows 10 percent disability and good service for six years.  He is applying as a warrant officer and has waived his disability and completed all requirements for acceptance in the active Army as a warrant officer aviator.  He continues by stating that he attempted to have his Reserve unit correct his documents but they were unable.  He has served in many forms of government and even on a regional "SWAT" team.  He states that no issues have ever arisen until the recruiting command found the classification discharge as "involuntary - for the good of the service."  He further states that he has provided all documentation to the recruiting command concerning this matter and was directed to this Board.

3.  The applicant provides the following documents in support of his application:  a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); a Major Personnel Action Inquiry; a memorandum, subject: Physical Disability Separation, dated 20 March 2001; his discharge orders from the U.S. Army Reserve, dated 20 March 2001; his DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 10 January 2001; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 September 1996; his Standard Form 503 (Consultation Sheet); a memorandum, subject: Line of Duty Investigation, dated 16 May 1997; his DA Form 5181-R (Screening Note of Acute Medical Care), dated 18 August 1995; his DA Form 2173 (Statement of Medical Examination and Duty Status) 5 November 1996; and his Medical Evaluation Board (MEB) proceedings.

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 enlisted in the U.S. Army Reserve on 24 March 1995.  

3.  On 24 March 1995, orders were published ordering the applicant to initial active duty for training for approximately 9 weeks for basic training under the alternate (split training) program with a reporting date of 22 June 1995 to Fort Jackson, SC.  

4.  A Consultation Sheet shows he injured his left shoulder on 18 August 1995 and suffered a fracture to his clavicle while at basic training.  

5.  On 26 April 1996, orders were published ordering the applicant to initial active duty for training for advanced individual training for approximately 7 weeks with a reporting date to Fort Leonard Wood, MO of 27 June 1996.

6.  A Statement of Medical Examination and Duty Status shows that the applicant fell to the ground on his shoulder while participating in relay races, fracturing his clavicle, on 18 August 1995, at Fort Jackson, SC.  He was treated at a health clinic at Fort Jackson.  The attending physician signed the DA Form 2173 on 21 August 1995.  His injury was determined to be in line of duty.

7.  His DD Form 214 for the period ending 4 September 1996 shows he was released from active duty training on 4 September 1996 under the provisions of Army Regulation 635-200, chapter 4 at the completion of his required active service with his service characterized as uncharacterized.  On the following day, he was transferred to his Reserve unit in Miami, FL.  

8.  The applicant was placed on a temporary profile in June 1999 for fracture to his left clavicle and left acromioclavicular (AC) joint dislocation with a physical profile of 131111.  

9.  On an unknown date, the applicant was placed on active duty for medical processing.  

10.  On 28 November 2000, the applicant was referred to a MEB.  He was diagnosed as having fracture dislocation to his left AC joint status post distal clavicle resection with pain and sensory nerve injury left shoulder.  The MEB proceedings indicated the applicant's medical conditions were incurred while he was entitled to base pay and existed prior to service.  The MEB found him unfit for duty and recommended referral to a Physical Evaluation Board (PEB).

11.  On 5 January 2001, the applicant was placed on permanent profile for left shoulder pain with a physical profile of 113111.

12.  On 9 February 2001, an informal PEB found the applicant unfit for military service due to chronic pain in his left shoulder under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5299 and 5003 at a combined disability rating of 10 percent.  The PEB recommended that the applicant be separated with severance pay.  The applicant concurred with the recommendations and waived a formal hearing of his case.

13.  Department of the Army, U.S. Army Physical Disability Agency (PDA), Washington, DC, Orders D46-2, dated 20 March 2001, discharged the applicant from the U.S. Army Reserve with an effective date of 6 April 2001 under the provisions of Army Regulation 635-40.  The additional instructions stated, in part, "(a) You are authorized disability severance pay in grade of SPC based on 00 Year(s), 09 Month(s), 25 Day(s) service as computed under section 1208, Title 10, United States Code (10 USC 1208) provided you have completed at least six months active duty."  This order shows he was discharged with a 10 percent disability rating from the Reserve of the Army and that this order did not affect his enlistment in the Army National Guard of Florida.  

14.  A Report of Investigation Line of Duty and Misconduct Status), dated 10 October 2001, shows that the applicant sustained a fractured clavicle to his left shoulder on 18 August 1995.  That report indicated that the applicant stated that he was not treated by any military or civilian doctors during the period 31 December 1995 and 5 June 1999 for the injury and that he stated that the aggravated shoulder pain during this period was a result of the original injury.  The report indicated that the applicant stated that his pain was caused by activities associated with training in his unit and were not a result of his civilian occupation.  The findings were in line of duty.  

15.  His Chronological Statement of Retirement Points for retirement year ending 6 April 2001 shows he was credited with 4 years of qualifying service for retirement at age 60.  

16.  The applicant provided a copy of a Major Personnel Action Inquiry, dated 17 December 2008, which shows he was involuntarily discharged "for the good of the service."  

17.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-24b(3) lists separation for physical disability with severance pay.

18.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Paragraph 
4-5 of this regulation states that any applicant who was last separated or discharged from any Component of the U .S. Armed Forces for medical reasons with or without disability for enlistment into the Regular Army, U.S. Army Reserve, or Army National Guard will require a waiver.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his recruiter told him that the code on his current discharge does not show "medical" as the classification of his discharge.  However, orders published by the PDA in March 2001 show he was medically discharged under the provisions of Army Regulation 635-40 from the U.S. Army Reserve on 6 April 2001 with entitlement to severance pay at a disability rating of 10 percent.

2.  The applicant contends that his discharge status should have been "medical" or "retired."  However, the evidence of record shows he was appropriately discharged by reason of physical disability with entitlement to severance pay in accordance with the governing regulation.

3.  The applicant states that he has applied as a warrant officer, has waived his disability, and completed all requirements for acceptance in the active Army as a warrant officer aviator.  He contends that no issues have ever arisen until the recruiting command found the classification discharge as "involuntary - for the good of the service."

4.  The applicant provided a Major Personnel Action Inquiry, dated 17 December 2008, which indicates he was involuntarily discharged by reason of "for the good of the service."  However, the source of this document cannot be determined and the applicant's military personnel records from the Army Reserve do not indicate he was discharged for this reason.  

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20090001609





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ABCMR Record of Proceedings (cont)                                         AR20090001609



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