IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090013976


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 he be medically retired from active duty.

2.  The applicant states he has been in a Human Immunodeficiency Virus (HIV) protocol program for 19 years.  His unit was mobilized for duty in Iraq and he was on active duty in June 2005 when he was found unfit for duty.  The U.S. Army Reserve (USAR) discharged him on 31 August 2005 and he was placed in the Retired Reserve on 1 September 2005.

3.  The applicant also states that he was a military technician (Wage Grade 10) under Title 10, U.S. Code, section 10216.  When he was retired from the USAR, he lost his job of 16 years.  His loss of income caused him to lose his home, his automobile, and it led to his declaring bankruptcy.  He states he felt discriminated against because he had HIV.

4.  The applicant provides in support of his application:

	a.  a copy of a self-authored handwritten letter, dated 5 August 2009;

	b.  copies of various congressional correspondence documents;

	c.  a copy of a DA Form 4851 (Request for Reserve Component Assignment or Attachment), dated 17 August 2005;

	d.  a copy of a DA Form 4856 (Developmental Counseling Form), dated 17 August 2005, concerning his involuntary separation from a USAR Troop Program Unit (TPU);

	e.  a copy of a Department of Veterans Affairs (DVA) rating decision which did not grant service-connection for his HIV status;

	f.  a copy of a U.S. Army Human Resources Command, St. Louis, MO  (USAHRC-STL) memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 9 June 2005;

	g.  copies of various fitness for duty evaluation documents showing a CD4 lymphocyte count of less than 200 cells per cubic millimeter (ccm), and finding him unfit;

	h.  a copy of his ARPC Form 249-E (Chronological Statement of Retirement Points) which shows that between 10 May 2005 and his discharge on 31 August 2005, he served 3 months and 22 days on active duty;

	i.  a copy of Orders 05-231-00001 published by Headquarters, 80th Division Institutional Training, Richmond, VA, dated 19 August 2005, discharging him as "medically disqualified - not a result of own misconduct" and transferring him to the Retired Reserve; and

	j.  a copy of his Total Army Personnel Data Base (TAPDB) printout.

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 was born on 2 July 1956.  He served in the USAR from 10 May 1979 to 31 August 2005.  He had 20 years, 3 months, and 22 days of qualifying service of retirement and 2153 total retirement points.  He was a Sergeant First Class (SFC/E-7).

3.  By his own admission, the applicant lived with HIV for some 19 years; his DVA records show he tested positive for HIV in the 1980's during a period of inactive duty service.

4.  Except for his ARPC Form 249-E, there is no record of the applicant serving on active duty in 2005.  There are no orders available to show if or when he came on active duty and there are no orders available to show if or when he was released from active duty.  The applicant claims his TPU was mobilized for deployment in 2005 and he entered on active duty for mobilization processing.

5.  Records show that on 8-9 June 2005, the applicant underwent a physical evaluation which included an examination, laboratory testing, and radiological testing.  It appears the evaluation process was completed at civilian facilities.  The laboratory testing revealed the applicant's CD4 count was below the 200 cmm threshold (182 cmm).  This information was provided to the applicant's unit and, on 13 July 2005, his unit requested a fitness for duty evaluation.

6.  A memorandum from USAHRC-STL to the U.S. Army Reserve Command (USARC), Fort McPherson, GA, dated 19 July 2005, requested an annual fitness for duty determination for the applicant.  The Army Reserve Surgeon, citing the applicant's CD4 count, determined he was "not fit for duty."

7.  On 26 July 2005, the USAHRC-STL HIV Management Office notified the applicant's major command that he had been found not fit for duty by the USARC Surgeon.  On 3 August 2005, the major command notified the applicant's immediate command that he had been found not fit for duty and directed that retirement orders be published as he had sufficient service for non-Regular retirement at age 60.

8.  On 19 August 2005, Orders 05-231-00001 discharged the applicant as "medically disqualified - not a result of own misconduct" and transferred him to the Retired Reserve.

9.  Army Regulation 600-110 (Identification, Surveillance, and Administration of Personnel Infected with Human Immunodeficiency Virus (HIV)) prescribes policy, procedures, responsibilities, and standards concerning identification, surveillance, and administration of personnel infected with HIV.  It provides that USAR Soldiers who are not in the Active Guard Reserve (AGR) program or on Extended Active Duty (EAD) and are confirmed to be HIV-infected may prove fitness for service.  Soldiers found fit will be permitted to serve in the Selected 
Reserve in a nondeployable billet, if available.  HIV-infected USAR Soldiers who demonstrate progressive clinical illness or immunological deficiency and are determined by medical authorities to not meet medical retention standards under Army Regulation 40-501 (Standards of Medical Fitness) will be processed for separation per Army Regulation 135-178 (Enlisted Administrative Separations) or Army Regulation 135-175 (Separation of Officers).

10.  Army Regulation 40-501 prescribes medical fitness standards for enlistment, induction, and appointment, including officer procurement programs; medical fitness standards for retention and separation, including retirement; and medical examinations and periodic health assessments.  Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service.  USAR Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with USAR policies and procedures for medical examinations and the periodic health assessment.  A Soldier will not be referred to an MEB or a PEB because of impairments that were known to exist at the time of acceptance in the Army and that have remained essentially the same in degree of severity and have not interfered with successful performance of duty.  A Soldier with HIV confirmed antibody positivity with the presence of progressive clinical illness or immunological deficiency may be considered unfit for further military service.

11.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a USAR Soldier with HIV confirmed antibody positivity and he was enrolled in an HIV protocol program for most of his USAR service.  There is no evidence to show he developed HIV while he was entitled to basic pay.  In accordance with Army Regulation 600-110, he was permitted to prove and succeeded in proving his fitness for service.  This allowed him to remain active in the USAR and in a TPU military technician assignment.



2.  During civilian medical screening on 8-9 June 2005, the applicant's CD4 count was determined to be below the 200 cmm threshold, thus demonstrating his progressive clinical illness or immunological deficiency.  This prompted a fitness for duty determination and he was found not fit for duty.

3.  The issue of CD4 testing refers to lymphocytes, a type of immune blood cell in the body, that are infected by HIV and decline during the course of infection by this virus.  The number of CD4 lymphocytes in the body provides information regarding the stage of disease and what complications of HIV infection one is at risk for.  In general, most people are not at risk for complications of HIV until their CD4 cells decline to below 200 cmm, although there are no absolutes as some 
will develop complications with numbers greater than 200 cmm and many will go months or years with CD4 cells less than 200 cmm before they develop any complications.

4.  As an HIV-infected USAR Soldier who demonstrated progressive clinical illness or immunological deficiency, he was determined by medical authorities to not meet medical retention standards under Army Regulation 40-501 and he was processed for separation per Army Regulation 135-178.  Since he had received his Twenty Year Letter, his separation was properly processed as a retirement and he was transferred to the Retired Reserve to await non-Regular retired pay at age 60.

5.  Regrettably, based on the foregoing there is no basis for granting the applicant's 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 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)                                         AR20090013976



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ABCMR Record of Proceedings (cont)                                         AR20090013976



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