IN THE CASE OF:	 

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090011260 


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 she be medically retired instead of being placed in the Retired Reserve.

2.  The applicant states that she did not meet medical standards and was placed in the Retired Reserve but should have been medically retired.  She wants her records changed to show that she is medically retired because of her disabilities. The applicant also states that her medical records determined that her PULHES factors in her physical profile read "313123" and that she was unfit for duty.  She further states that the Department of Veterans Affairs (VA) awarded her over 100 percent to permanent disability housebound with special compensation because she has post-traumatic stress disorder (PTSD), generalized anxiety, insomnia, mood disorders, hypothyroidism, gastroesophageal reflux disease, bilateral knee tendonitis, high cholesterol, and suffers from major depression.  She concluded by stating that her records should reflect medically retired because she is a veteran with mood swings who cannot interact with people and is no longer mentally stable or physically able to serve in the military.

3.  The applicant provides the following documents in support of this application:

	a.  four copies of her DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 14 March 2005, 5 April 2004, 19 December 2002, and 30 July 1994;

	b.  a copy of a DD Form 3349 (Physical Profile), dated 27 April 2002;

	c.  a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 March 2004;

	d.  a copy of her DD Form 2808 (Report of Medical Examination), dated 3 October 2005;

	e.  a copy of a Standard Form 507 (Medical Record), dated 8 February 2006;

	f.  a copy of her Army Reserve Personnel Command Form 249-2-E (Chronological Statement of Retirement Points); and

	g.  a copy of her VA Rating Decision, dated 26 March 2009.

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 record shows that she enlisted in the Regular Army (RA) on 15 October 1980 and served until she was honorably discharged on 30 July 1994.

3.  On 29 March 1994, she enlisted in the U.S. Army Reserve (USAR).

4.  The applicant submitted a copy of a DA Form 3349, dated 27 April 2002, which shows she was given a permanent physical profile for no running due to chronic knee pain.

5.  On 24 June 2002, the applicant was ordered to active duty (AD) to perform special work.  On 19 December 2002, the applicant was honorably released from AD and was returned to the 3rd U.S. Army, Atlanta, GA.

6.  On 2 January 2003, the applicant was ordered to AD for the purpose of mobilization in support of Operation Enduring Freedom.

7.  The applicant's official medical records contain a copy of a DA Form 2173, dated 16 March 2004, which shows that she was seen on 3 March 2004 for hyperthyroidism which occurred in the line of duty.  Item 15 (Details of Accident or History of Disease) states that the applicant was deployed on 10 January 2003 to Kuwait.  Upon returning to Fort Benning, GA, while going through a medical Soldier's Readiness Program, the applicant informed doctors of swelling, pain, hand tremors, and serious weight loss.  Item 15 also states the applicant was currently being treated for hyperthyroidism.

8.  The applicant was ordered to AD effective 16 March 2004 due to an AD medical extension.

9.  The applicant submitted a copy of a memorandum from Echo Company, Continental U.S. Replacement Center, Fort Benning, GA, dated 15 June 2004, subject:  Physical Condition of [Applicant], which stated that she was physically incapable of reasonably performing her duties due to her physical condition of hyperthyroidism and headaches, that she is a good Soldier but her physical condition creates a burden for others and impacts her readiness, her physical condition leaves her incapable of serving in any combat environment, that she does not have a record Army Physical Fitness Test for Fiscal Year 2004 due to a permanent physical profile and because she mobilized, her physical profile requirement for her military occupational specialty is 212221, and it was recommended that the applicant be considered unfit for reasonable performance of her duties.

10.  On 14 March 2005, the applicant was honorably released from AD not by reason of physical disability and returned to 3rd U.S. Army, Fort McPherson, GA. 

11.  The applicant submitted a copy of a DD Form 2808, dated 3 October 2005, which shows she underwent a medical physical examination at the VA Medical Center, Decatur, GA.

12.  The applicant submitted a copy of a Standard Form 507 (Medical Record), dated 7 December 2005, from the Physical Review Board, St. Louis, MO, requesting additional information regarding her PTSD/insomnia, generalized anxiety disorder, bilateral knee tendonitis, hypothyroidism, sinusitis, and her pelvic exam and pap smear.  The Standard Form 507 shows that the Physical Review Board received medical information regarding her bilateral knee pain and severe hypothyroidism and her PTSD on 7 February 2006 and determined that she did not meet the medical standards in accordance with Army Regulation 
40-501 (Standards of Medical Fitness), paragraph 3-41e for severe hypothyroidism, paragraph 3-41e for bilateral knee pain, and paragraph 3-33 for PTSD/anxiety.

13.  The applicant submitted a copy of a DA Form 3349, dated 8 February 2006, which shows that her medical condition was severe hypothyroidism, bilateral knee pain, and PTSD/anxiety and her permanent profile PULHES was coded "312123."  Item 4c (If a permanent profile with a 3 or 4 PULHES, does the Soldier meet retention standards in accordance with chapter 3, Army Regulation 40-501), needs medical evaluation board (MEBD)/physical evaluation board (PEB), was checked "NO."

14.  Orders 06-188-00007, Headquarters, 81st Regional Readiness Command, dated 7 July 2006, show that effective 7 August 2006 the applicant was released from her current assignment by reason of being medically disqualified and transferred to the Retired Reserve.  These orders also authorized the applicant early retirement in accordance with Title 10, U.S. Code, section 12731b.

15.  The applicant's USAR retirement points history statement shows she had 19 years of creditable service for retired pay.

16.  The applicant submitted a copy of her VA Rating Decision, dated 25 March 2009, which shows she received a 100-percent rating for Graves' disease, post-operative thyroidectomy, with residual hypothyroidism; a 30-percent service-connected PTSD; a 20-percent rating for moderate instability, right knee associated with patellofermoral pain syndrome, right knee, with tendonitis; a 
20-percent rating for moderate instability, right knee associated with patellofermoral pain syndrome, left knee, with tendonitis; a 20-percent rating for with patellofermoral pain syndrome, left knee, with tendonitis; a 20-percent rating for patellofermoral pain syndrome, right knee, with tendonitis; and a 10-percent rating for tender surgical scar, status post thyroidectomy.

17.  Army Regulation 635-40, chapter 8, provides for MEBDs, which are convened to document a service member's medical status and duty limitations insofar as duty is affected by the member's medical status.  Situations that require consideration by an MEBD include those involving Reserve Component personnel on active duty for training or inactive duty for training whose fitness for further military service upon completion of hospitalization is questionable and those who require hospitalization beyond the termination of their tour of duty.  Consideration by an MEBD also includes those involving a Reserve Component member who requires evaluation because of a condition that may render him unfit for further duty.

18.  Title 10, U.S. Code, section 12731b, is a special rule for members with physical disabilities incurred in the line of duty and states, in effect, that in the case of a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary may determine to treat the member as having met the necessary service requirements for retirement at age 60 if the member has completed at least 15 and less than 20 years of qualifying service for retired pay.

19.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation 
40-501, as amended, provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides, in pertinent part, that the military 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 an MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

21.  Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in the Army not separating the individual for physical unfitness.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.

22.  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.  The 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 evidence of record shows that the applicant was discharged from the Selected Reserve and transferred to the Retired Reserve because she was found to be medically disqualified.  There is no evidence of record that shows that her conditions were found to be duty related; therefore, she was given an early nonregular retirement because she completed at least 15 but less than 20 years of qualifying service.

2.  There is no evidence to show that the applicant's medical records were recommended for review by an MEBD.  Without an MEBD, there would have been no basis for referring her to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

3.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency's examinations and findings.

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.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.

BOARD VOTE:

____ ____  ____ ___  ________  GRANT FULL RELIEF 

_______  _________  ________  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)                                         AR20090011260



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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