IN THE CASE OF:	  

		BOARD DATE:  26 October 2010

		DOCKET NUMBER:  AR2010009394 


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 reconsideration of his earlier request for a medical discharge/retirement.

2.  The applicant states he was serving on active duty when he suffered an injury on 17 July 1990.  Further, he is entitled to benefits under Title 10, U.S. Code, chapter 1223 (Retired Pay for Non-Regular Service).

3.  The applicant provides the following documents in support of this application which were not previously seen by the Board:

* Standard Form 600 (Chronological Record of Medical Care), undated
* DA Form 3349 (Medical Condition - Physical Profile Records), dated 7 April 1980
* Standard Form 88 (Report of Medical Examination), dated 3 June 1983 
* multiple pages of progress notes, dated 14 September 2009 through 5 November 2009
* Department of Veterans Affairs (VA) Rating Decision, dated 14 July 2009

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090003423 on 23 June 2009.

2.  The applicant provided new arguments and new evidence which merit consideration by the Board.

3.  The previous ABCMR decision granted him the following partial relief:

	a.  determined he was medically disqualified for retention in the Selected Reserve as a result of a non-duty related injury rather than for the injury he suffered in July 1990,

	b.  entitled him to retired pay at age 60 under Public Law 102-484, and

	c.  issued him a 15-year letter certifying his eligibility for retired pay at age 60 along with the appropriate Survivor Benefits Plan election form.

4.  The previous ABCMR decision denied his request for a discharge based on physical unfitness because it appeared his medical disqualification was from a condition which existed prior to his entry on active duty rather than from his July 1990 injury, which made his medical disqualification non-duty related.

5.  There were partial medical records available for review and those records show:

	a.  His commander found the injury he sustained on 17 July 1990 was in the line of duty.

	b.  He was hospitalized at the VA Hospital from 20 July 1990 to 26 July 1990 and diagnosed with an L-4 compression fracture with pedicle [the stem that attaches a new growth] due to back trauma.

	c.  On 5 October 1990, he was released from active duty and assigned to Headquarters, 7581st U.S. Army Reserve (USAR) Garrison, Fort Buchanan, Puerto Rico.

	d.  Headquarters, Fort McPherson, Permanent Orders Number 297-012, dated 24 October 1990, reassigned him to Headquarters Company, U.S. Army Garrison, for evaluation by a military occupational specialty medical retention board.

	e.  Headquarters, Fort McPherson, Orders 319-18, dated 15 November 1990, released him from active duty effective 16 November 1990 and referred him to a mandatory medical review board.

	f.  His Standard Form 88, dated 15 December 1990, shows the purpose for the examination was a board.  The evaluating physician recommended a board evaluation and ears, nose, throat, and orthopedic examinations.  The applicant was found "not qualified for (word unknown) completed orthopedic evaluation."

	g.  On 13 July 1991, the command surgeon found that the applicant had long-standing low back pain dating back to 1976, was overweight, and suffered an L-4 fracture in July 1990, and that the orthopedic evaluation done during mobilization found him fit for duty with a temporary physical profile.

	h.  The command surgeon recommended that the applicant be referred to the Active Component for orthopedic evaluation of the L-4 injury and a final recommendation and that he seriously be considered for separation from service and transferred to the Standby Reserve on the Active Status List for a period of 1 year to allow sufficient time for evaluation by the USAR Personnel Center Surgeon.

	i.  On 6 May 1992, a physical review board found him qualified for retention in the USAR.

6.  A memorandum, 311th Quartermaster Company, dated 13 May 1993, subject: Unsatisfactory Participation stated the applicant requested and was granted a waiver to stay in the USAR; however, due to his continued health problems and a 
60-percent disability rating from the VA, he was declared non-deployable by the USAR.  The applicant requested a discharge due to his medical unfitness.

7.  Effective 28 May 1993, he was honorably discharged from the USAR.

8.  As a result of an Inspector General inquiry, the 65th USAR Command Deputy Chief of Staff for Personnel determined the discharge orders should be revoked because the applicant had not understood his options and had elected to be discharged rather than transferred to the Retired Reserve.

9.  He was required to sign and date corrected option letters (English and Spanish) acknowledging his transfer to the Retired Reserve.

10.  On 9 February 1994, Headquarters, USAR Command, Permanent Orders 94-088-068 assigned him to the Retired Reserve based on his mandatory removal due to being medically disqualified for retention.

11.  Army Regulation 135-178 (Army National Guard and Army Reserve Separation of Enlisted Personnel), paragraph 12-1 (Medically Unfit for Retention), states that Reserve enlisted Soldiers who are no longer qualified for retention by reason of medical unfitness under the standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation Including Retirement), will be discharged unless they are granted a waiver of the medical disqualification or are eligible and request transfer to the Retired Reserve under the provisions of Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), 
paragraph 6-1 (Eligibility).

12.  Army Regulation 635-40 provides that the medical 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 a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

13.  Army Regulation 635-40 states that under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

14.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

15.  Public Law 106-65, added section 12731b (Special Rule for Members with Physical Disabilities Not Incurred in the Line of Duty) and made permanent  an earlier law that states 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 may, for the purpose s of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he or she has completed at least 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of his request for a medical discharge/retirement because he was serving on active duty when his injury occurred.
2.  The evidence of record confirms he was serving on active duty when he sustained a back injury on 17 July 1990.  However, the evidence of record also shows that he had a history of back problems going back to 1976.

3.   On 9 February 1994, Headquarters, USAR Command, Permanent Orders  94-088-068 assigned him to the Retired Reserve based on medical disqualification for retention with an effective date of discharge of 28 May 1993.

4.  On 23 June 2009, the ABCMR determined his medical disqualification was non-duty related and corrected his record to show he was entitled to retired pay at age 60 under Public Law 102-484 and issued him a 15-year letter certifying his eligibility for retired pay at age 60.  

5.  There is no available evidence to show that the injury he sustained on 17 July 1990, as opposed to his long history of back problems, resulted in his medical disqualification which occurred on 28 May 1993.  Lacking evidence to the contrary, and in view of the foregoing, his request for medical retirement based on physical unfitness should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090003423, dated 23 June 2009.



      _____________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)                                         AR20090003423



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ABCMR Record of Proceedings (cont)                                         AR20100009394



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