BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090015284 


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 discharged from the U.S. Army Reserve (USAR).

2.  The applicant states, in effect, that she enlisted in the Regular Army (RA) in 1974 and in the USAR in 1987.  She was hospitalized from April through August 1988 and she had back surgery in July 1988.  She states that she has received a 40 percent service-connected disability rating.  She has been trying to get her records corrected and she has been told one thing after another.  A personnel sergeant told her that she would receive a medical retirement and the paperwork needed signatures, she was told her records were in transit status, then she was told to perform yearly drills and to submit her 20 year letter in order to get her identification card.  Military personnel kept changing and she had to start the process all over again.  Additionally, she states the time she spent in the active Reserve did not count towards her retirement nor was she medically boarded.

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

	a.  a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 April 1987;

	b.  a copy of a Department of Veteran Affairs (VA) Certificate, dated 28 July 2009;

	c.  a DD Form 4/1 (Enlistment/Reenlistment Document); 

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

   e.  three memoranda written to various organizations.

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 she enlisted in the RA on 3 June 1974 and served until she was honorably discharged on 14 April 1987 under the provisions of 635-200, paragraph 16-8 due to reduction in strength.  She had completed 
2 years, 10 months, and 12 days of net active service.

3.  On 15 April 1987, she enlisted in the USAR.  Orders Number D-08-571034, U.S. Army Reserve Personnel Center, dated 21 August 1995 show she was discharged from the USAR on this date.  

4.  The applicant's medical records were not available for review.

5.  The applicant's Chronological Statement of Retirement Points shows she completed 2 years of creditable service for retired pay.  It does not show her RA service.

6.  The applicant's VA Certificate, dated 28 July 2008, shows she is entitled to compensation for service-connected disabilities rated at 30 percent or more.

7.  The applicant submitted three, undated, statements and in two of the statements she sought information concerning getting back into the military to complete 20 years of service for retirement pay.  The third statement inquires about a retired military identification card.  

8.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength), chapter 2–4 establishes the criteria for awarding retirement points and states, in pertinent part, that personnel on active duty, active duty for training, and involuntary active duty for training or annual training are awarded 
1 point for each calendar day they serve in one of these categories and may not be awarded additional points for other activities while in such status.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 8, provides for medical evaluation boards, 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 the member unfit for further duty.

10.  Army Regulation 635-40 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.

11.  Army Regulation 40-501 (Retention Medical Fitness Standards), Chapter 3,
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.

12.  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.

13.  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 an individual from further military service.

14.  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 applicant's medical records were not available for review and the applicant provided no medical records that show she should have been medically discharged.  In the absence to evidence to the contrary it is presumed that the applicant was discharged in accordance with applicable regulations and her rights were fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in the discharge process.

2.  An 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 her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

3.  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 

________  ________  ________  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)                                         AR20090015284



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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