IN THE CASE OF:	  

		BOARD DATE:	    29 April 2010

		DOCKET NUMBER:  AR20090017319 


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 his active Federal service be increased in order to obtain a regular retirement in addition to his medical disability retirement.  He requests that his records be corrected to show he was discharged on 
1 September 2004 with 20 years of active Federal service and that he be awarded all associated back pay and allowances.

2.  The applicant states he was released from active duty in August 2002 because of physical disability.  He was a member of the United States Army Reserve (USAR) at the time and believes his records are incorrect and in actuality he had one full day over 18 years of active Federal service and as such should have been retained under the provisions of Title 10 US Code, section 12686.

3.  He states in the months prior to his medical retirement he was not afforded the opportunity to recover and not given due process to rebut his medical condition.  He states he did not have the mental capacity to understand the Army’s responsibility to him to provide him the opportunity to be retained on active duty for sanctuary.  He states the medical system in place at the time of his hospitalization should not have forsaken his ability to recover and live up to deployment standards.

4.  He states he is physically able to be recalled to active duty to fulfill and complete the remainder of his active Federal service to obtain a regular retirement and notes he was rushed through the medical system denying him valuable information about the benefits and disadvantages of accepting or waiting a few days till going into regular retirement sanctuary.  The applicant implies he was led to believe he would receive a “full military pension” and was unaware it was less than a full retirement.

5.  The applicant provides no additional evidence in support of his request.

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 initially entered military service as a member of the Army National Guard in 1971 and in 1974 enlisted in the USAR.  On 19 August 1985 the applicant was ordered to active duty in the AGR (Active Guard Reserve) Program.  He executed several reenlistment actions while a member of the AGR including his last reenlistment for a period of six years on 25 April 1997.  As a result of this 1997 reenlistment action, the applicant's separation date was established as 24 April 2003. 

3.  Documents in the applicant’s Official Military Personnel File indicate a Medical Evaluation Board (MEB) concluded on 15 November 2001 the applicant’s neurogenic bladder condition did not meet the retention standards of Army Regulation 40-501 and recommended referral to a Physical Evaluation Board (PEB).  The applicant concurred with the findings and recommendation of the MEB.

4.  On 11 December 2001, the applicant requested continuance on active duty in the event the PEB determined he was unfit because of physical disability.  

5.  An informal PEB convened on 14 December 2001 and concluded the applicant’s neurogenic bladder, requiring intermittent catheterization, prevented reasonable performance of duties required by grade and military specialty and recommended the applicant be medically retired with a disability rating of 
30 percent.  The applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing.  The PEB proceedings were approved on behalf of the Secretary of the Army on 8 January 2002.

6.  Following approval of the findings of the PEB, the applicant’s request for continuance on active duty was processed through appropriate channels and ultimately denied.  In the processing of the applicant’s request it was noted his neurogenic bladder condition requiring multiple daily self-catheterizations was incompatible with continued service as a senior enlisted Soldier of the combat engineers and that his condition placed him at undue and unacceptable risk if deployed to a field environment.

7.  On 14 August 2002, the applicant was retired by reason of physical disability.  He was serving in the rank of master sergeant at the time.  Documents in his file indicate he was originally scheduled to retire earlier but his separation date was extended in order to permit him to expend his military leave days and participate in a permissive temporary duty program prior to separation.

8.  The applicant’s 2002 DD Form 214 and DA Form 1506 (Statement of Service or Computation of Length of Service for Pay Purposes) both show the applicant had a total of 17 years, 10 months, and 29 days of active Federal service at the time of his disability retirement.  This included 16 years, 11 months, and 26 days of active Federal service between 1985 and 2002 and 11 months and 3 days of prior active service.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states:

   a.  The objective of the Army’s Physical Disability Evaluation System is to maintain an effective and fit military organization with maximum use of available manpower and to provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability.

   b.  Providing definitive medical care to active duty Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the Department of the Army mission.  A Soldier may not be retained or separated solely to increase retirement or separation benefits.

   c.  A Soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.
   d.  Headquarters Department of the Army may defer the disposition of a Soldier who, although unfit because of physical disability, can still serve effectively with proper assignment limitations.  A Soldier who is unfit because of physical disability will not be continued on active duty solely to increase benefits.  The Soldier must be able to maintain himself or herself in a military environment without jeopardizing individual health or the health of others.  The Soldier must not require an excessive amount of medical care.

10.  Title 10, US Code, Section 12686 provides that a member of a Reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary or his designee.  The Army refers to Reserve Soldiers retained for this type of sanctuary as “12686 Sanctuary Soldiers.”  Soldiers in this category must apply for “sanctuary” status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s argument he had reached 18 years of active Federal service and as such should have been retained on active duty until he reached 20 years of service is not supported by any evidence of record or provided by the applicant.

2.  Notwithstanding the applicant’s contention that he should have been retained under the provisions of Title 10, US Code Section 12686, the provision allows for the involuntary separation of Soldiers if approved by the Secretary of the Army or his designated representative.  In the applicant’s case his disability retirement was approved by the Secretary’s designee and as such, even if he did have more than 18 years of active service, or was eligible to apply for sanctuary, his disability retirement would have been appropriate.  

3.  The applicant also argues he did not receive due process and was not afforded the opportunity to recover and meet retention standards.  The evidence available, however, confirms the applicant was a participant in his disability processing and following the findings and conclusions of his informal PEB, concurred and waived his right to a formal hearing.  His application for continuation on active duty, although denied, is further evidence confirming the fact the applicant was actively involved in his disability processing.  There is no evidence, and the applicant has not provided any evidence, that shows his disability processing was improper or his rights or due process were violated in any way.

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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090017319



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ABCMR Record of Proceedings (cont)                                         AR20090017319



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