BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090009257 


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 his transfer to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) be changed to a retirement due to permanent physical disability.

2.  The applicant essentially states that he should have been retired due to permanent physical disability instead of being transferred to the USAR Control Group (Retired Reserve).

3.  The applicant provides a self-authored letter, dated 8 April 2009, which was addressed to a Member of Congress; a letter, dated 21 May 2009, from the same Member of Congress; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 24 January 2003 to 30 June 2004; a letter, dated 4 February 2008, from the Mobilization Support Branch of the U.S. Army Human Resources Command, St. Louis, Missouri, to a Member of Congress; and his Notification of Eligibility for Retired Pay at Age 60 memorandum (Selected Reserve 15-year letter) in support of this application.

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 military records, although somewhat incomplete, show that he enlisted in the USAR on 30 August 1983.  He was ordered to active duty for training (ADT) on 30 November 1983, completed initial entry training, and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  He was released from ADT on 22 March 1984 and transferred back to his USAR unit.  He was later awarded MOS 62E (Heavy Construction Equipment Operator).  He was ordered to active duty in support of Operation Enduring Freedom on 24 January 2003 for a period not to exceed 503 days.

3.  Although the complete facts and circumstances pertaining to his release from active duty on 30 June 2004 are not in his official military personnel file, on 14 May 2004, the U.S. Army Human Resources Command, St. Louis, Missouri, issued the applicant his 15-year letter.  This document stated, in pertinent part, that he was a Selected Reserve member with at least 15 years of qualifying service for non-regular retirement and that he was eligible under Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in line of duty), to apply for retired pay upon attaining age 60.  This document also shows, in pertinent part, that the applicant requested transfer to the USAR Control Group (Retired Reserve).

4.  U.S. Army Human Resources Command, Alexandria, Virginia, orders, dated 16 June 2004, retained the applicant on active duty and assigned him to Fort Polk, Louisiana, effective 10 June 2004 for the purpose of voluntarily participating in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.

5.  On 30 June 2004, the applicant was honorably released from active duty.  Item 18 (Remarks) of the DD Form 214 issued to him on that date shows that he was separated by reason of physical disability and that he elected Reserve retirement in lieu of severance pay.

6.  The applicant provided a letter, dated 4 February 2008, from the Mobilization Support Branch of the U.S. Army Human Resources Command, St. Louis, Missouri, that was addressed to a Member of Congress.  This letter essentially stated that the applicant was released from active duty based on the findings of a physical evaluation board (PEB) because he was found unfit for service by reason of physical disability.

7.  Title 10, U.S. Code, section 12731b, provides a special rule for members with physical disabilities not incurred in the line of duty.  It provides that in the case of a member of the Selected Reserve of a Reserve Component 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 of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15 but less than 20 years of service computed under section 12732 of this title.  Notification under this subsection may not be made if the disability was the result of the member's intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned or when the disability was incurred during a period of unauthorized absence.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet line-of-duty criteria to be eligible to receive retirement and severance pay benefits and that a disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  Line-of-duty decisions are reached according to policies and procedures prescribed in Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) and copies of line-of-duty decisions must be included in the official records of the case.

9.  Army Regulation 40-501 (Standards of Medical Fitness), provides in paragraph 10-25 that Department of Defense Instruction 1332.38 states that members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  The Soldier is responsible for requesting that his or her packet be submitted to the PEB and the Soldier is responsible for preparing his or her packet for submission to the PEB.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his transfer to the USAR Control Group (Retired Reserve) should be changed to a retirement due to permanent physical disability.

2.  Although the complete facts and circumstances related to the applicant's release from active duty and transfer to the USAR Control Group (Retired Reserve) are not available, the available evidence shows that he was found unfit by reason of physical disability for a medical condition that was not incurred in the line of duty and that he requested transfer to the Retired Reserve.  He was issued a 15-year letter and released from active duty and transferred to the Retired Reserve per his request.  As he did not provide any evidence which shows that any requirements of law and regulation were not met or that his rights were not fully protected throughout his separation process, regularity must be presumed in this case.

3.  It was determined that the applicant's physical disability was not incurred in the line of duty.  As Soldiers who sustain or aggravate physically unfitting disabilities must meet line-of-duty criteria to be eligible to receive retirement benefits, he was not eligible for a retirement due to physical disability.

4.  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 has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x______  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.
2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during his military career.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20090009257



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ABCMR Record of Proceedings (cont)                                         AR20090009257



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