IN THE CASE OF:	

		BOARD DATE:	  18 June 2009

		DOCKET NUMBER:  AR20090002438 


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 the issuance of orders placing him on the permanent disability retired list (PDRL) with full retirement.  

2.  The applicant states that when the Board previously granted him relief in the form of a transfer to the Retired Reserve, he and other officials at the Support Division of the Army Review Boards Agency believed that the intent of the Board was to grant him full military retirement, including a blue identification (ID) card.  When the orders reached the U.S. Army Human Resources Command (HRC), St. Louis, MO, officials simply placed him in the Retired Reserve and allowed a red ID card; thus, his military retirement terminates at age 60.  He adds that this is very confusing since "he can’t be medically retired until age 60 then discharged."  In order to end this confusion, he states that HRC officials should issue him orders placing him on the PDRL and authorizing him full retirement and specifically state that he is authorized full retirement.  

3.  The applicant provides in support of his application a copy of the Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 24 June 2008; a copy of Orders D-07-226387, issued by the U.S. Army Reserve (USAR) Personnel Command (now known as HRC), St. Louis, MO, on 2 July 2002; a copy of Orders D-07226387R, issued by HRC-St. Louis, on 6 January 2009; a copy of Orders C-01-900171, issued by HRC-St. Louis, on 7 January 2009; and a copy of a letter, dated 4 August 1999, certifying Department of Veterans Affairs (DVA) compensation and supporting documents.


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 records show he was born on 14 September 1957 and enlisted in the Regular Army for a period of 2 years on 1 November 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  He was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4 on 31 October 1985 and transferred to the USAR Control Group (Annual Training).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 2 years of creditable active military service.

3.  On 4 November 1985, the applicant enlisted in the Kansas Army National Guard (KSARNG).  He subsequently completed Officer Candidate School (OCS) and was honorably discharged from the ARNG on 31 August 1987 for the purpose of accepting a commission.

4.  On 6 July 1988, the applicant was appointed as a combat engineer second lieutenant in the California Army National Guard (CAARNG) and he was assigned to Company B, 579th Engineer Battalion, Eureka, CA.  

5.  On 25 July 1989, the applicant was released from the CAARNG and transferred to the Washington Army National Guard (WAARNG).  He was assigned to Company E, 3rd Battalion, 161st Infantry, Puyallup, WA, and he was promoted to first lieutenant (1LT) on 31 August 1990.

6.  The facts and circumstances surrounding the applicant’s discharge from the WAARNG are not available for review; however, his record contains a copy of a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 12 October 1992, that shows he was discharged in the rank of 1LT as a result of his resignation in accordance with National Guard Regulation (NGR) 600-100 (Commissioned Officers-Federal Recognition and Related Personnel Actions) and transferred to the USAR Control Group (Reinforcement) on 12 October 1992.  

7.  On 10 May 1993, the applicant was transferred from the USAR Control Group (Reinforcement) to Headquarters and Headquarters Company, 124th USAR Command, Seattle, WA.  While assigned to this unit, he received a DA Form    67-8 (Officer Evaluation Report) for the period from 10 May 1993 to 22 February 1994 that shows a rating of "always exceeded requirements" by his rater and a "promote with contemporaries" by his senior rater. 

8.  On 10 February 1995, the applicant was transferred from the 124th USAR Command, Seattle, WA back to the USAR Control Group (Reinforcement).

9.  On 29 October 1996, by letter, HRC-St. Louis notified the applicant that he was selected for promotion to CPT effective 30 August 1995.

10.  On 16 January 1997, the applicant was reassigned from the USAR Control Group (Reinforcement) to the 1491st Logistical Support Battalion, 4th Brigade, Fort Lewis, WA, and on 6 June 1997, he was further assigned to the
3rd Battalion, 91st Regiment, 4th Brigade, Fort Lewis, WA.  He was further reassigned on 21 July 1997 to the Military Personnel Center (MILPERCEN), St. Louis, MO.

11.  On 2 July 2002, HRC-St. Louis, MO, published Orders D-07-226387 directing the applicant’s honorable discharge from the USAR.

12.  On 18 February 2008, the applicant petitioned the ABCMR to transfer him to the Retired Reserve.  On 24 June 2008, the ABCMR rendered a favorable decision and directed the applicant’s records be corrected to show he was transferred to the Retired Reserve.  Accordingly, on 6 January 2009, HRC-St. Louis voided his discharge orders dated 2 July 2002 and issued new orders (Orders C-01-900171) on 7 January 2009 directing his transfer to the Retired Reserve.

13.  In conjunction with his petition, he submitted a copy of his VA decision, dated 27 December 1996, regarding his claim for service-connected disability for Lyme disease which was determined by the VA to have been incurred during active service.  



14.  There is no indication that the applicant was issued a permanent medical profile or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).  Furthermore, the applicant’s medical records are not available for review with this case.

15.  The applicant's most recent chronological statement of retirement points, dated 1 June 2009, shows he completed 9 years and 1 day of qualifying service for non-regular retirement. 

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  The disabling condition must have been incurred or aggravated while the Soldier was entitled to basic pay.

17.  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of 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.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

18.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

19.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  The Veterans Affairs Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The Department of Veterans Affairs (DVA) does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

20.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 6 of this regulation provides for transfer to and from the Retired reserve.  It states, in pertinent part, that assignment to the Retired Reserve is authorized for various reasons, among which, Soldiers who are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.  Chapter 7 contains guidance on removal from active status and paragraph 7-1a indicates that Soldiers removed from active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible.

21.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that each Reserve component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completed the service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically discharged and placed on the PDRL with entitlement to full retired pay. 
2.  With respect to the applicant’s transfer to the Retired Reserve, the applicant specifically requested to be transferred to the Retired Reserve in his original application (attached).  The ABCMR reviewed his application, determined that he met one of the eligibility criterion for transfer to the Retied Reserve, and determined that he should have been transferred to the Retired Reserve.  Accordingly, new orders were published to transfer him to him to the Retired Reserve.  Nevertheless, he did not complete 20 qualifying years for non-regular retirement and it does not appear that he met the eligibility criteria for retired pay at age 60. 

3.  With respect to the issue of a medical retirement, there is no evidence in the applicant's records and the applicant did not submit any evidence that shows his injury/illness led to a physical profile or limited duty, or that his injury/illness would have warranted his referral to the physical disability evaluation system.  Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, he could not have been issued a medical discharge or separated/retired for physical disability.

4.  Furthermore, the applicant’s successful performance review from 10 May 1993 to 22 February 1994 and his continuous service in the USAR and/or the ARNG until he was discharged on 2 July 2002 do not support a medical condition that would have warranted entry into the physical disability evaluation system (PDES).

5.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with his rank, grade or specialty and assigned an appropriate disability rating before he can be medically retired or separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  

6.  With respect to his 100 percent disability rating, an award of a DVA rating (or any other agency, such as the Social Security Administration) does not establish error in his discharge from the Army.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA awards ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

7.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20090002438



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002438



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1