IN THE CASE OF:	  

		BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090009983 


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 for a medical retirement.

2.  The applicant states that he should have been rated at 30 percent disability which would have allowed him to medically retire.  He adds that he was not properly counseled prior to his discharge and was unaware that he had to pay the severance pay back if he were awarded disability compensation by the Department of Veterans Affairs (DVA).  He also adds that he does not remember going before a physical evaluation board (PEB). 

3.  The applicant did not provide any additional documentary evidence in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080002460 on 13 May 2008.

2.  The applicant submitted a self-authored statement in which he presents a new argument which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.  

3.  The applicant’s records show he enlisted in the Regular Army for a period of 4 years on 10 August 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Field Artilleryman).  

4.  On 15 January 1976, the applicant was admitted to the U.S. Army Hospital at Fort Hood, TX, where he underwent an excision of osteochrondroma, right femur, after having complained of knee pain.  He stated that he had previously injured his knee when he fell on it in 1967.  He did well during and after the surgery and his wound healed satisfactorily.  He was discharged (from the hospital) on 23 January 1976.  

5.  The applicant’s records further show he was honorably released from active duty on 9 August 1976 and transferred to the U.S. Army Reserve (USAR).  

6.  The applicant’s records further show he executed a 3-year reenlistment in the USAR on 10 August 1978 and a 6-year reenlistment in the USAR on 11 July 1982.  He held MOS 71L (Postal Clerk) throughout his USAR service, attained the rank/grade of specialist five (SP5)/E-5, and was assigned to the 351st Adjutant General (AG) Detachment (Postal), Tallahassee, FL. 

7.  The applicant’s Enlisted Evaluation Report for the period September 1984 to August 1985 shows his principal duty title was postal finance clerk and that he was rated “5” by his rater and “4” by his indorser for physical fitness (5 is the highest on the scoring scale).  This report states he did not complete the “PT” [physical test] due to a P-3 profile which prevented him from performing the running portion of the test.  Other comments included “has learned to use sound judgment,” “is extremely knowledgeable in the technical skills pertaining to his MOS [military occupational specialty],” and “has shown initiative and good judgment in maintaining close working relations with the finance section.”    

8.  On 21 November 1985, by memorandum addressed to the Commander, 81st U.S. Army Reserve Command, the applicant's immediate commander requested a medical determination for fitness to continue service in the USAR.  The immediate commander remarked that the applicant was issued a physical profile for a knee condition and that he had not been able to take the running portion of the Army Physical Readiness Test (APRT). 

9.  On 16 December 1985, the Command Surgeon, 81st U.S. Army Reserve Command, remarked that the applicant's records documented a severe, limiting, chronic right knee dysfunction for over 10 years, not corrected by surgery.  He further determined that the applicant’s limitations relating to his chronic knee dysfunction precluded meaningful activity from a military point of view, specifically mobilization and that the applicant should not be retained in the USAR. 

10.  On 10 March 1986, by letter, the Commander, 351st AG Detachment (Postal) notified the applicant that his medical records were reviewed by medical personnel in accordance with Army Regulation 40-501 (Standards of Medical Fitness) to determine his medical fitness for retention in the USAR and that after this review, he was found to have had a medical condition which rendered him medically disqualified for further retention in the USAR.  Accordingly, he was requested to elect one of three options available to him under the provisions of paragraph 12-1 of Army Regulation 135-178 (Enlisted Administrative Separations): 

	a.  discharge from the USAR due to medical condition which rendered him disqualified for further retention; 

	b.  transfer to the Retired Reserve in accordance with paragraph 6-1a of Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers); or

	c.  request consideration for a waiver of his disqualification under the provisions of paragraph 16 of Army Regulation 140-120 by the Command Surgeon. 

11.  On 15 March 1986, the applicant acknowledged receipt of the commander’s letter and elected to be transferred to the Retired Reserve.

12.  The applicant’s records contain a DA Form 4651-R (Request for Reserve Component Assignment or Attachment), dated 31 March 1986, that shows he was determined to be medically unfit for retention as a mobilization asset by the 81st U.S. Army Reserve Command, Command Surgeon.  

13.  On 25 April 1986, the applicant was transferred to the Retired Reserve for medical disqualification.

14.  There is no indication in the applicant's records that he underwent a medical evaluation with subsequent referral to a medical evaluation board (MEBD) and/or a PEB. 




15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

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 Army Regulation 40-501, chapter 3.  

17.  Chapter 8 of Army Regulation 635-40 outlines the rules for processing through the disability system for Soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training.  Paragraph 8-2 states that Soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.  Paragraph 8-6 of the regulation states that when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation.  Paragraph 8-9 states in pertinent part that a Soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc. 

18.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities.  Army Regulation 635-40, appendix B, modifies those provisions of the rating schedule inapplicable to the military and clarifies rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

19.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) states, in pertinent part, that assignment to the Retired Reserve is authorized for Soldiers medically disqualified for active duty resulting from a service-connected disability; and medically disqualified not as a result of their own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.  Eligible Soldiers must request transfer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge should be changed to a medical discharge.

2.  The applicant’s records show that when he entered active service in 1972, he appears to have had a preexisting knee condition that he suffered at the age of 15 in 1967.  During his active service, he complained of knee pain and subsequently underwent an operation at Fort Hood.  His records show he was honorably released from active service on 9 August 1986 with no medical limitations.

3.  The applicant subsequently entered the USAR and served through multiple reenlistments as a postal clerk.  At one stage, a review of his medical records determined that he was disqualified for retention in the USAR.  It appears that he was properly counseled and he was given several options, as required by the applicable regulation at the time.  As a result, he elected to transfer to the Retired Reserve; he did not elect consideration of his case by the Command Surgeon.

4.  In order to be referred to the Physical Disability Evaluation System, unfitting medical conditions must have been incurred while the member was entitled to basic pay.  It appears the Command Surgeon determined at the time that the applicant's medical knee condition primarily existed prior to his entry in service, and he presumably made a determination that his condition was not aggravated by service and, therefore, he was not eligible to undergo an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.  At this point in time, 23 years after he was separated, there is insufficient evidence to show that referral to an MEBD/PEB or a medical retirement was warranted.

5.  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.


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 to amend the decision of the ABCMR set forth in Docket Number AR20080002460, dated 13 May 2008.




      _______ _   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)                                         AR20090009983



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ABCMR Record of Proceedings (cont)                                         AR20090009983



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