IN THE CASE OF:	  

		BOARD DATE: 	        23 June 2009

		DOCKET NUMBER:  AR20090003423 


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 transfer to the Retired Reserve due to medical disqualification be corrected to a discharge for physical unfitness.

2.  The applicant states that on 17 July 1990 while on active duty he suffered an L-4 disk compression fracture.  He spent 8 weeks on convalescent leave, then was released from active duty on 16 November 1990 and referred for a medical review board.  This resulted in him erroneously being honorably discharged on 28 May 1993.  When he asked for this error to be corrected, his discharge order was revoked and he was transferred to the Retired Reserve due to medical disqualification.  He adds that he is currently rated 100-percent disabled by the Department of Veterans Affairs (VA).

3.  The applicant provides a DA Form 2173 (Statement of Medical Examination and Duty Status), a DA Form 4159 (Request for Medical Care in a Federal Medical Treatment Facility Outside Department of Defense), a Standard 
Form 513 (Consultation Sheet), and excerpts from his military records.

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, born on 13 June 1953, enlisted in the Regular Army on 18 April 1974.  He was honorably released from active duty on 12 April 1976 and transferred to an Army National Guard unit.

3.  He had a break in service from 18 April 1980 to 13 June 1980.  The applicant enlisted in the U.S. Army Reserve (USAR) on 14 June 1980 and remained assigned to a USAR unit from that date to the date of his separation.

4.  On an unknown date, the applicant was ordered to active duty for an unknown period.

5.  On 31 August 1990, the applicant was examined by a military physician who reported that the applicant fell down a hill on 17 July 1990 while on active duty, sustaining a compression fracture of his left lateral L-4 disk.  The applicant was reexamined by a military physician on 18 September 1990 who changed the applicant's diagnosis to minimal compression (less than 5 percent) of his L-4 disk, otherwise normal.  The physician returned the applicant to a duty status with a temporary physical profile for 30 days.

6.  An informal line of duty investigation was initiated by a military physician as evidenced by the completion of the top portion of a DA Form 2173.  However, there is no evidence that the applicant's commander completed the bottom portion of this form or that the applicant's injury was approved as being incurred in line of duty.

7.  On 16 November 1990, the applicant was honorably released from active duty and returned to his USAR unit.

8.  On 13 July 1991, the U.S. Army Reserve Forces-Puerto Rico Command Surgeon sent a memorandum to the applicant's unit commander.  In that memorandum the Command Surgeon summarized the applicant's situation by stating that the applicant:  had physical profile restrictions; a 10-percent disability rating from the VA; was overweight; had a history of low back pain dating back to 1976; was diagnosed with a compression fracture in July 1990 during training; was found not to be deployable for Operation Desert Storm; and had an orthopedic evaluation performed during mobilization which found him fit for duty with a temporary profile with no follow-up required.  The Command Surgeon recommended that the applicant be transferred to the USAR Control Group (Standby Active) due to temporary medical disqualification to allow him to be referred to another orthopedic evaluation for a final recommendation.

9.  On 23 April 1993, the applicant was informed that his medical records/reports were reviewed by proper authorities who determined that he had a medical condition which rendered him medically disqualified for further retention in the Army Reserve.  The applicant was then provided the options available to Reservists who are determined medically disqualified for retention due to a non-service related medical condition.  The applicant elected to be discharged.

10.  Accordingly, on 28 May 1993, the applicant was honorably discharged.

11.  Based on a review of the applicant's discharge by the Inspector General, on 9 February 1994 the applicant's discharge orders were revoked and new orders were published transferring him to the USAR Control Group (Retired Reserve) due to medical disqualification for retention effective 29 May 1993.

12.  Based on advice given by the ABCMR on 28 October 2008, the applicant requested a 15-year letter certifying his eligibility for retired pay at age 60.  The USAR Personnel Command responded to that request by informing the applicant that he could not be issued a 15-year letter because Title 10, U.S. Code, section 12731b, limited the issuance of those letters to Reservists who were determined medically disqualified for retention due to a disability which was not service related.

13.  Army Regulation 135-178, paragraph 12-1 (Medically Unfit for Retention), states that Reserve enlisted Soldiers who are no longer qualified for retention by reason of medical unfitness under the standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation Including Retirement), will be discharged unless they are granted a waiver of the medical disqualification or are eligible and request transfer to the Retired Reserve under the provisions of Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), 
paragraph 6-1.

14.  Army Regulation 140-10, paragraph 6-1 (Eligibility), states that Reservists are eligible for transfer to the Retired Reserve if they are medically disqualified not as a result of their own misconduct for retention in an active status (Ready Reserve) or entry on active duty, regardless of the total years of service completed.

15.  On 30 November 1994, the Assistant Secretary of Defense for Reserve Affairs published a memorandum titled, "Revised Selected Reserve Transition Program Policy Guidance."  This memorandum implemented Public Law 
102-484, dated 23 October 1992.  Section 7 of this memorandum states that members of the Selected Reserve who, from 1 October 1991 to 30 September 1999, have completed at least 15 and less than 20 years of qualifying service, may elect early qualification for retired pay at age 60 if they were being involuntarily separated due to a reduction in force or if they were unfit because of non-duty related physical disability.  The Reservists who qualify and request early qualification for retired pay will be provided the notification that he or she has completed the years of service required for eligibility for retired pay.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  Those Soldiers determined to be physically unfit due to a duty-related condition (the disability was incurred while the Soldier was entitled to basic pay) will be discharged with severance pay or transferred to the Retired List based upon the percentage of disability awarded, if otherwise eligible.

17.  Records available on the integrated Personnel Electronic Records Management System show that the applicant has 17 years, 11 months, and 11 days of qualifying service for retired pay at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was transferred to the Retired Reserve due to medical disqualification based on his compressed L-4 disc.  This would be appropriate if the applicant's medical disqualification, as diagnosed by the Command Surgeon on 13 July 1991 and by an unnamed official on or about April 1993, was not duty related.  However, the applicant would have been entitled to be issued a 15-year letter certifying his retired pay at age 60 under Public Law 102-484 if this was the case. 

2.  The applicant's request is somewhat broad.  A medical discharge can be many different things.  Based on the applicant following the advice of the Board's staff to request a 15-year letter, it would appear that the applicant is requesting whatever form of compensation for which he may be eligible to receive for his almost 18 years of qualifying service.

4.  Notwithstanding the USAR Personnel Command's determination that the applicant's medical disqualification was duty related, the preponderance of evidence shows that it was not.  The Command Surgeon stated that the applicant had a history of low back pain dating back to 1976, and the applicant's initial diagnosis of compression fracture of his left lateral L-4 disk was changed to a minimal compression of his L-4 disk.  Therefore, it would appear that the applicant's medical disqualification was from a condition which existed prior to his entry on active duty rather than from his July 1990 injury.  This would make the medical disqualification non-duty related.  Therefore, it would be proper to now amend the orders transferring the applicant to the Retired Reserve to show that the applicant was entitled to retired pay at age 60 under Public Law 102-484, and to issue him a 15-year letter certifying his eligibility for retired pay at age 60.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  __X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  showing that he was found medically disqualified for retention in the Selected Reserve as a result of a non-duty related injury rather than for the injury he suffered in July 1990;

	b.  amending Orders 94-088-068 dated 9 February 1994 which transferred the applicant to the Retired Reserve to show that he is entitled to retired pay at age 60 under Public Law 102-484; and

   c.  issuing him a 15-year letter certifying his eligibility for retired pay at age 60 along with the appropriate SBP election form.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a discharge for physical unfitness.




      ___________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)                                         AR20090003423



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ABCMR Record of Proceedings (cont)                                         AR20090003423



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