IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100009853


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 a physical disability retirement.

2.  The applicant states he was refused a medical evaluation board (MEB) and was separated at the expiration of his term of service (ETS) before ever being evaluated for injuries he received in the line of duty.

3.  The applicant provides:

* the member copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 362-003, Transition Point, Headquarters, Fort Dix, NJ, dated 28 December 1994, discharging him
* memoranda, dated 12 September 1993, subject:  Attendance to MMRB [Military Occupational Specialty (MOS)/Medical Retention Board]
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* DA Form 3349 (Physical Profile) approved on 24 May 1994
* Defense Finance and Accounting Service leave and earnings statement
* Internal Revenue Service Form W-2 (Wage and Tax Statement)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no statement and provides no additional documentation.



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 enlisted in the Regular Army (RA) for 3 years on 18 August 1986.  He was trained in, awarded, and served in MOS 11B1O (infantryman).  On 17 August 1989, he was honorably released from active duty and transferred to a U.S. Army Reserve troop program unit, Company C, 1st Battalion, 410th Infantry, Waterloo, IA.

3.  The applicant again enlisted in the RA for 4 years on 4 January 1991.  He enlisted as a specialist (SPC)/E-4 in MOS 11B, for an assignment with The Old Guard, Fort Myer, VA.  The record shows he served at Fort Myer until July 1992 when he was reassigned to Germany and the 501st Military Intelligence Battalion.

4.  The applicant's records show he served in MOS 11B, but performed duties as a signal channel radio operator and a radio telephone operator (RTO) in Germany.  In December 1992, he was reassigned from the 501st Military Intelligence Battalion to Company E, 51st Infantry, 165th Military Intelligence Battalion, V Corps, as an RTO.  He was promoted to sergeant (SGT)/E-5 on 1 March 1993.

5.  The applicant's records contain a record of field-grade nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ):

* on 18 July 1993, for unlawfully pushing a private first class and tackling him over a set of chairs in violation of Article 123, UCMJ
* on 18 July 1993, for being drunk and disorderly in violation of Article 134, UCMJ
* on 28 May 1993, for violating a lawful general regulation by wrongfully operating a rental car without a valid U.S. Army Europe driver's license in violation of Article 92, UCMJ
* on 6 October 1993, for wrongfully and unlawfully subscribing a false statement under oath in violation of Article 134, UCMJ

6.  As punishment, the applicant was reduced from SGT to SPC, made to forfeit $630.00 pay per month for 2 months, and made to perform 45 days of extra duty.

7.  On an unknown date, a bar to reenlistment was imposed against the applicant.  In March 1994, he received a DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the period March 1993 through December 1993.  The report stated he did not "maintain[s] high standards of personal conduct on and off duty."  His rater commented that he exhibited "conduct unbecoming of a noncommissioned officer while off duty."  The rater also indicated the applicant:

* lacks sound judgment in off duty activities and performance
* personal behavior is incompatible with good discipline
* needs to accept responsibility for his off duty behavior

8.  On 22 August 1994, the applicant's company commander recommended the applicant's bar to reenlistment be removed.  On an unknown date, the bar was removed with a warning that no further acts of misconduct would be tolerated.

9.  The applicant's medical records are not available.  A DA Form 3349, dated 16 May 1994, is contained in the records which assigns him a permanent physical profile (P3) for lower extremities (left knee).  On 7 June 1994, his unit commander indicated the physical profile prevented him from performing his duties, thus requiring a change in MOS and duty assignment.

10.  The facts surrounding the applicant's discharge are not available.  His DD Form 214 shows he was involuntarily discharged as part of a reduction in force and that he received full separation pay of $10,667.00.  During his out-processing, the servicing personnel unit noted he received a P3 physical profile in May 1994, but he did not receive an MMRB and as of 7 December 1994, he had not received a separation physical examination.  It was recommended that he be given a separation physical examination at the Fort Dix Transition Point; however, he underwent a separation physical examination in Darmstadt, Germany, on 15 December 1994.

11.  The applicant's separation physical examination acknowledged his left knee problem and that he had two operations on his knee.  It also indicated he experienced crepitus, a medical term describing grating, crackling, or popping sounds during movement between joints when two rough surfaces of the joints come into direct contact with each other, most commonly caused in the knee by the decrease or total absence of cushioning material.  The examination also indicated the knee was stable.  The examination found the applicant qualified for separation.

12.  The applicant was honorably discharged at Fort Dix on 28 December 1994 under the provisions of paragraph 16-8, Army Regulation 635-200 (Personnel Separations), for "reduction in force."  His DD Form 214 shows he served 3 years, 11 months, and 25 days of his 4-year enlistment.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of the regulation then in effect provided for early separation due to reduction in force, strength limitations, or budgetary constraints.

14.  Army Regulation 600-60 (Physical Performance Evaluation System) implements and establishes operating procedures for the Physical Performance Evaluation System (PPES).  The purpose of the PPES is to maintain the quality of the force by ensuring that Soldiers are physically qualified to perform their primary MOS or specialty code worldwide and under field conditions.  Soldiers will be evaluated for the MOS in which they are scheduled to work.  The PPES establishes the MMRB as an administrative screening board to make this evaluation.  The MMRB recommendations are limited to one of the following actions:

* retain the Soldier in primary MOS or branch/specialty code
* recommend reclassification
* place in a probationary status
* refer for an MEB/physical evaluation board (PEB); "medical discharge" is not an authorized recommendation for the MMRB

15.  Soldiers must have the physical ability to satisfactorily perform their primary MOS (enlisted and warrant officers) or branch/specialty code duties (officers) worldwide and in a field environment.

	a.  An MMRB is a formal administrative board conducted to evaluate the Soldier's ability to perform his or her military specialty to standard.  The system is established to ensure continuity of effort among commanders, doctors, personnel managers, and the Physical Disability Evaluation System (PDES) regarding recommendations for the Soldier with a P3/P4 physical profile.

	b.  An MMRB is conducted when a Soldier has been issued a permanent physical profile (PULHES) of 3 or 4 on DA Form 3349 (Physical Profile), unless direct referral to an MEB/PEB is required.

	c.  It evaluates a Soldier's ability to perform in his or her current military specialty.  The MMRB provides the MMRB convening authority with increased flexibility to determine a Soldier's deployability, reclassification potential, or referral into the PDES.  It does not determine if the Soldier is fit or unfit for duty.

	d.  The MMRB can recommend retention of the Soldier in his or her primary MOS or specialty code or it can recommend placement of the Soldier in a probationary status.  It can recommend reclassification or change in specialty.  Finally, it can refer the Soldier to the PDES for conduct of an MEB/PEB.

16.  Army Regulation 40-501 (Standards of Medical Fitness) provides that Soldiers with the following lower extremity conditions who do not meet the required medical standards will be evaluated by an MEB:

* internal derangement of the knee
* residual instability following remedial measures, if more than moderate in degree

17.  Army Regulation 40-501 further provides that possession of one or both of the listed conditions does not mean automatic retirement or separation from the service.  Physicians are responsible for referring Soldiers with conditions listed above to an MEB.  It is critical that MEB's are complete and reflect all of the Soldier's medical problems and physical limitations.  The PEB will make the determination of fitness or unfitness.

18.  At the end of Fiscal Year 1987, the active duty U.S. military was at its post-Vietnam peak of 2,174,217 positions.  The National Defense Authorization Act for Fiscal Year 1991 called for a Fiscal Year 1995 end strength of 1,613,000 positions, about a 25-percent reduction, or 561,000 positions less than the Fiscal Year 1987 end-strength level.  A greater reduction target was subsequently put in place which projected an end strength of 1,607,000 by the end of Fiscal Year 1995 and further reductions in succeeding years.  To accomplish its reduction goal, the Department of Defense (DOD) emphasized voluntary reductions, but used various voluntary and involuntary reduction tools to draw down its military forces across various pay grades and skill areas.

	a.  Among the voluntary actions were early release of personnel prior to their normal end of enlistment or use of financial separation incentives to induce persons to leave.  Additionally, in Fiscal Year 1993, DOD used new legislative authority for the early retirement of personnel after 15 years of service.

	b.  Less voluntary means were used when voluntary tools did not achieve the necessary reductions.  Less voluntary means of separation involved tightened retention standards or the use of special boards to mandate retirement of selected personnel from the ranks of those already eligible to do so and the use of a reduction in force provision to involuntarily separate career force personnel who were not yet eligible for any form of retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a physical disability retirement.

2.  The applicant experienced an undefined knee problem and underwent two surgical procedures.  In May 1994, he received a P3 physical profile for his lower extremities, presumably for his knee problem.  In June 1994, his commander completed a DA Form 3349 to indicate the applicant could not perform the duties of his MOS.

3.  The applicant should have received an MMRB, but he did not.  An MMRB would not have determined his fitness; it would only have evaluated his ability to perform in his current military specialty and would have provided the MMRB convening authority with increased flexibility to determine his deployability, reclassification potential, or referral into the PDES.  The limit of recommendations by the MMRB would have been:

* retain the applicant in his primary MOS
* recommend his reclassification
* place him in a probationary status to see if he improves
* refer him for an MEB/PEB

4.  During the same period in which he received a P3 physical profile, the applicant was identified for discharge under the reduction in force provision.  As part of the separation process, he was given a separation physical examination.  The examining physician noted his left knee, but indicated the condition of his knee was stable.  The applicant was determined to be qualified for separation.

5.  Given the results of the applicant's separation physical examination which found his knee to be stable and not an impediment to his discharge, it is highly probable that an MMRB would have recommended nothing more than reclassification to an MOS that would not have required the same demands on his knee as his infantry MOS.

6.  It is noted the applicant served to within 5 days of his full 4-year term of enlistment, thus establishing a presumption that he was physically fit to serve.



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)                                         AR20100009853



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ABCMR Record of Proceedings (cont)                                         AR20100009853



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