BOARD DATE: 30 March 2010
DOCKET NUMBER: AR20100000094
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, correction of his records to show he was medically retired or that he be given an exception to policy to collect retired pay for nonregular service immediately.
2. The applicant states that when he retired in 2006, he had not been diagnosed with Amyotrophic Lateral Sclerosis (ALS). He was first diagnosed with that condition in January 2008. The Department of Veterans Affairs (VA) awarded him a 30 percent disability rating percentage for his ALS based on presumption because although it was not shown in service, it manifested after discharge.
3. The applicant adds that he has over 15 years of active service.
4. The applicant provides his VA rating decision, three DD Forms 214 (Certificate of Release or Discharge from Active Duty), and two ARPC Forms 249-E (Chronological Statement of Retirement Points).
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show that he was commissioned as a U.S. Army Reserve (USAR) officer and entered active duty on 29 October 1976. He was promoted to captain on 29 October 1980. He was honorably released from active duty on 29 June 1988 and transferred to a USAR unit.
2. The applicant served continuously in the USAR and was promoted to colonel. His last period of active duty was performed from 23 January 2003 to 2 March 2004.
3. On 2 September 2006, the applicant was transferred to the Retired Reserve. His ARPC Form 249-E shows he has 30 years of qualifying service for retired pay at age 60. The applicant is currently age 56.
4. On 1 July 2009, the VA awarded the applicant a 30 percent disability rating percentage for ALS. In that decision it stated the applicant was not diagnosed with ALS in service or within 1-year of separation from active service, but service treatment records diagnosed polyps on his vocal cords and noted shortness of breath, symptoms which were later attributed to ALS. Service-connection for ALS was granted on the basis of presumption because although it was not shown in service, it manifested after discharge. There was no affirmative evidence that ALS was not incurred during or aggravated by active service.
5. Title 10, U.S. Code, chapter 61 (Retirement or Separation for Physical Disability), provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of Soldiers who incur a physical disability in the line of duty while serving on active or inactive duty.
6. Title 10, U.S. Code, section 12731, provides for the retirement of Reservists, upon application, who have at least 20 years of qualifying service for retired pay when they reach the age of 60.
7. In the processing of this case the Board's staff contacted the applicant by email and requested that he provide the documents referenced by the VA in its rating decision. The applicant responded that the VA has his medical records but added the polyps on his vocal cords was a misdiagnosis.
DISCUSSION AND CONCLUSIONS:
1. There are no exceptions to policy provisions to provide retired pay for nonregular service prior to a Reservist reaching age 60. As such, there is no basis to grant this portion of the applicant's requested relief.
2. The applicant was last separated from active duty on 2 March 2004 and, according to the applicant, was not diagnosed with ALS until January 2008.
3. The military medical records referred to by the VA in its rating decision were not provided to the Board.
4. The fact that the VA, operating under its own laws and regulations, awarded the applicant a disability rating for ALS does not indicate that the Army should have medically retired him.
5. Without evidence that the applicant was diagnosed with ALS while he was on active duty and that the condition rendered him unfit to perform his military duties, he does not meet the criteria of Title 10 U.S. Code, chapter 61 for a medical retirement.
6. The applicant has well over 20 years of qualifying service and he will be eligible for retired pay on application at age 60.
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) AR20100000094
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