IN THE CASE OF:
BOARD DATE: 1 June 2010
DOCKET NUMBER: AR20090019862
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 that the reason for separation specified on her orders separating her from the U.S. Army Reserve (USAR), be corrected from "Medically Disqualified" to "Medical Disability" (this has been accepted as a request to change the applicant's discharge from a non-duty related disability discharge to a separation for a duty-related disability).
2. The applicant states since she was authorized early retirement due to a medical disability she should be eligible for retired pay retroactive to February 2007.
3. The applicant provides excerpts from her military records.
CONSIDERATION OF EVIDENCE:
1. The applicant was commissioned in the USAR on 7 December 1988, served continuously in the USAR not on extended active duty, and was promoted to captain.
2. On 26 May 2005, the Assistant to Command Surgeon, Physical Review Board, Human Resources Command, St. Louis, MO determined the applicant to not meet medical retention standards due to multiple myeloma.
3. Accordingly, on 11 February 2007, the applicant was transferred to the Retired Reserve. Her orders show the reason for her separation was "MEDICALLY DISQUALIFIED NOT RESULT OF OWN MISCONDUCT." These orders specify that the applicant is authorized early retirement under Title 10, U.S. Code, Section 12731b.
4. Title 10, Section 12731b, Special rule for members with physical disabilities not incurred in line of duty, states 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 concerned may, for purposes of Section 12731 of this title, determine to treat the member as having met the service requirements for retired pay for nonregular service and provide the member with the notification of eligibility for retired pay if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title.
5. Army Regulation 600-8-1 (Army Casualty and Memorial Affairs and Line of Duty Investigations), paragraph 41-8 states, in pertinent part, that if an Existing Prior To Service (EPTS) condition was aggravated by military service, the finding will be in line of duty. If an EPTS condition is not aggravated by military service, the finding will be not in line of duty not due to own misconduct, EPTS. Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.
6. Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or an in line of duty disability rated at least 30 percent.
7. Title 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and an in line of duty a disability rated at less than 30 percent.
DISCUSSION AND CONCLUSIONS:
1. For Reservists or Guardsmen not on extended active duty (e.g., not on an Active Guard and Reserve tour), the term EPTS does not mean that the medical condition existed prior to their entry into military service. Rather, the term is used to denote a condition that existed prior to their entry on a specific period of active or inactive duty.
2. Since there is no evidence or indication that the applicant's multiple myeloma was incurred in line of duty, she was not entitled to separation with disability benefits.
3. However, since she had over 15 years of qualifying service, she was separated with entitlement to retired pay for nonregular service at age 60 due to her medical disqualification.
4. As such, her discharge orders are properly executed and there is no reason to change them.
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) AR20090019862
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ABCMR Record of Proceedings (cont) AR20090019862
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