IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20090020843 


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, a Medical Evaluation Board (MEB).  She also requests incapacitation pay. 

2.  The applicant states:

* She wants her "medical line of duties" placed on her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* She needs this information in order to get care
* She wants her MEB reinstated to show her injuries sustained while on active duty
* She was released from active duty in the middle of her medical care
* She is 61 years of age and a diabetic who needs to get her medical rating
* She is having trouble with the Department of Veterans Affairs (DVA) because there is no rating showing her injuries were in the line of duty (LOD)
* Due to the hold on her retirement she cannot get paid
* She never received incapacitation pay
* Her records where lost several times and her commander at Walter Reed refused to sign the necessary paperwork to assist her with receiving care  






3.  The applicant provides:

* DD Form 214
* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* Service medical records
* DVA medical records

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 appointed a second lieutenant in the U.S. Army Reserve (USAR) on 27 April 1977 in the Army Nurse Corps.  She was promoted to lieutenant colonel on 25 May 1993.  

3.  The applicant was ordered to active duty on 10 September 2004 in support of Operation Enduring Freedom.  

4.  The applicant received her Notification of Eligibility for Retired Pay at Age 60 (Twenty year Letter) on 16 December 2004. 

5.  On 2 May 2006, the applicant was considered for promotion but not selected. 

6.  The applicant provided a service medical record, dated 19 July 2006, which states she was on medical hold since September 2005 undergoing an MEB for diabetes mellitus and chronic neck pain.

7.  The facts and circumstances surrounding the applicant’s separation are not contained in the available records.  However, the applicant’s DD Form 214 shows that on 19 July 2006 she was released from active duty under the provisions of Army Regulation 600-8-24 (Officer Transfer and Discharges), paragraph 2-25a.  She was transferred to a Troop Program Unit.

8.  The applicant provided a service medical record, dated 24 July 2006, which states:

* The applicant had been in the process for MEB disposition for some time with pending disposition on possible knee surgery and neck surgery
* MEB issues were diabetes mellitus, type II, on medications, not controlled; bilateral knee pain with meniscus tears and degenerative arthritis; cervical spondylosis C3-7 with disc bulge and cervicalgia; left shoulder pain, with lipoma
* MEB was originally prepared on 8 June 2005 for the diabetes mellitus and left shoulder lipoma
* She subsequently had complications following a fall and further knee and neck problems which took a while to have evaluated and then treatment was recommended by orthopedics and neurosurgery for her knees and back (i.e., surgery)
* Upon checking the status of the applicant's MEB disposition on this date, the physician was informed the applicant was released from active duty for non-compliance
* Any additional LOD disposition would be handled by the applicant's home unit in New Jersey and she would follow-up with DVA for any surgery and treatment on these conditions
* If an MEB is required they will process it through their chain of command medically and administratively  

9.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 26 July 2006, states:

* The applicant was mobilized to Fort Benning, Georgia from September 2004 to July 2006
* On 24 July 2006 she was evaluated and treated for hypertension (systemic), hyperlipidemia, refractive error, and benign skin neoplasm subcutaneous lipoma
* Item 32 (Injury is Considered to Have Been Incurred in the Line of Duty) on this form shows "Yes"

10.  A DA Form 3349 (Physical Profile), dated 26 September 2006, shows the applicant was issued a permanent physical profile of 333212.  She had multiple chronic medical problems but only one of them is identified on her DA Form 3349 as being in the LOD (i.e., contusion knees).  Item 10 (Other) on this form states the applicant does not meet medical retention standards and "Send to MEB." 



11.  On 11 October 2006, the applicant requested an MEB based on the approved LOD, DA Form 3349.  

12.  The available records do not contain an MEB.

13.  In support of her claim for incapacitation pay, the applicant provided an email, dated 6 February 2009, from the Army Medical Command (ARMEDCOM).  It states, in pertinent part, the applicant submitted an incapacitation pay claim in January 2007.  Due to administrative errors, the case was reviewed and approved but the claim could not be submitted.  The email indicates an official from ARMEDCOM spoke with the applicant on several occasions and told her exactly what was needed and corrections to be made; however, she did not submit the necessary claim forms.  She provided page 1 of 3 of a DA Form 7574 (Incapacitation Pay Monthly Claim Form), dated 30 August 2006, for incapacitation pay during the period 1-30 August 2006.  She also provided page 1 of 3 of a DA Form 7574, dated 30 September 2006, for incapacitation pay during the period 1-30 September 2006.    

14.  There are no medical records or other documents which show the applicant was unable to perform her civilian or military duties.

15.  On 4 February 2009, the applicant was assigned to the Retired Reserve.

16.  Paragraph 2-25a of Army Regulation 600-8-24 states an Active Guard Reserve (AGR) officer on an initial period of duty will be separated from active duty 90 days after notification of continuation board action of nonselection or at the end of the initial period of duty, whichever is later, unless earlier release is requested by the officer.  An AGR officer on a subsequent period of duty who is not recommended for continuation will be released from active duty 90 calendar days after notification of continuation board action unless earlier release is requested by the officer. 

17.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) establishes policies regarding incapacitation pay for Soldiers of the Army National Guard/Army National Guard of the United States and the U.S. Army Reserve. 

18.  Army Regulation 135-381 states that Tier 1 refers to claims by Soldiers who are unfit to perform their military duties as a result of an injury, illness, or disease caused by military service.  A determination of fitness for duty must be made by a 


military medical physician.  Eligible Soldiers are paid full military pay and allowances, less any civilian earned income received during the month of the claim, and are not eligible to draw retirement points. 

19.  Army Regulation 135-381 states that Tier II refers to claims by Soldiers who are determined fit to perform their military duties by a military medical physician but who are unable to perform their civilian jobs and can demonstrate a loss of civilian earned income.  Eligible Soldiers will be reimbursed for lost civilian earned income up to full military pay and allowances and are eligible to draw retirement points.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she was released from active duty in the middle of her medical care, she wants her MEB reinstated to show her injuries were sustained while on active duty, and she needs to get her medical rating.  

2.  Evidence of record shows the applicant had multiple chronic medical problems but only one of them was identified as being in LOD (bruised knees).  Her demobilization was apparently delayed for medical reasons and she remained in "Medical Hold" for almost a year and went through the MEB process but apparently kept introducing new complaints that required more testing.   Medical evidence of record provided by the applicant shows she was released from active duty for non-compliance.

3.  The applicant's DD Form 214 shows she was released from active duty on 
19 July 2006 under the provisions of Army Regulation 600-8-24, paragraph 2-25a (separated from active duty 90 days after notification of continuation board action of non-selection).  

4.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  As a result, there is insufficient evidence on which to grant the applicant's request for an MEB.

5.  The applicant contends she never received incapacitation pay.  However, there are no medical records or other documents which show she was unable to perform her civilian or military duties.  The applicant provided two incomplete DA Forms 7574.  Therefore, there is insufficient evidence on which to grant the applicant's request for incapacitation pay. 



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)                                         AR20090020843





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ABCMR Record of Proceedings (cont)                                         AR20090020843



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