IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100013294 


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 discharged for medical reasons
* credit for his service in the U.S. Army Reserve (USAR)
* recalculation of his retirement points

2.  The applicant states:

* he was exposed to Agent Orange while he was in Vietnam
* he developed prostate cancer and diabetes mellitus type II
* he was diagnosed with post-traumatic stress disorder

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 11 October 1967
* Department of Veterans Affairs Medical Center (VAMC) Compensation and Pension Exam Report, dated 8 March 2007
* one page of his U.S. Air Force Reserve (USAFR) enlistment contract
* DD Form 214, dated 2 April 1991
* ARPC Form 156 (Personnel Documents/Forms)
* Air Force Form 131 (Application for Transfer to the Retired Reserve)
* USAFR Order EK-7388, dated 29 August 1995
* undated, self-authored letter
* Defense Finance and Accounting Service (DFAS) letter, dated 9 December 2008
* DFAS letter, dated 6 November 2008
* Combat Related Special Compensation (CRSC) Information Sheet
* two letters to his Representative in Congress
* Air Force Review Boards Agency letter, dated 30 March 2010
* U.S. Army Human Resources Command (AHRC) letter, dated 10 March 2010
* CRSC reconsideration request, dated 1 January 2010
* Army Review Boards Agency acknowledgement letter, dated 11 December 2006
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)
* two VA Forms 21-4138 (Statement in Support of Claim)
* VA letter, dated 15 June 2006
* VA letter, dated 19 June 2009
* letter from his doctor, dated 30 April 2002
* Refill Request Form
* doctor's notes from Sharp Mission Park
* Compensation and Pension Exam Inquiry and Report
* VA psychiatrist letters
* VA Rating Decision, dated 20 November 2006

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 inducted into the Army of the United States on 26 October 1965.  He completed training as a food service apprentice and he arrived in Vietnam on 27 October 1966.

3.  After completing 11 months and 15 days of service in Vietnam, the applicant departed Vietnam en route to the United States on 9 October 1967.

4.  The applicant was honorably released from active duty as an oversees returnee on 11 October 1967 and he was transferred to the USAR Control Group (Annual Training) to complete his remaining service obligation.

5.  The applicant was discharged from the USAR Control Group (Standby) on 25 October 1971.

6.  A review of the applicant's records does not show he was found unfit for duty or that he suffered from any medical conditions while he was in the Army or the USAR which would have required him to be processed for discharge through medical channels.

7.  With subsequent service in the USAFR and USAR, and after being notified that he was medically disqualified for retention in the USAFR, the applicant applied for and was approved for retirement under the Early Reserve Retirement Program.  He was transferred to the Retired Reserve and he was placed on the USAF Reserve Retired List on 1 August 1995.

8.  The applicant's records contain an ARPC Form 156, dated 16 August 1995, showing that an audit was completed with regard to his service and as of 7 May 1995, he had 2,111 retirement points and 16 years, 11 months, and 16 days of satisfactory service.

9.  The applicant submits doctor's notes from Sharp Mission Park, dated 3 November 1998, showing that he underwent surgery for rectal cancer in 1995 and there was evidence of prostate cancer.

10.  The applicant submits letters from a VA psychiatrist stating that he has been diagnosed with post-traumatic stress disorder resulting from combat trauma he experienced in Vietnam and that he received a 100-percent service-connected disability rating in 2001.  A VA rating decision, dated 20 November 2006, shows he also has the following service-connected disability ratings:

* left lower extremity peripheral neuropathy – 10 percent
* right lower extremity peripheral neuropathy – 10 percent
* left upper extremity peripheral neuropathy – 10 percent
* accelerated arteriosclerosis secondary to diabetes mellitus type II – 10 percent
* diabetes mellitus type II with erectile dysfunction, hypertension, and diabetic necrobosis – 10 percent
* right upper extremity peripheral neuropathy (formerly rated as right little finger peripheral neuropathy) – 10 percent

11.  The applicant submits copies of VA medical records and letters from DFAS showing that he receives VA disability compensation in the amount of $2,760.00; therefore, his military retired pay in the amount of $631.00 was suspended.  The Department of the Air Force determined he was entitled to CRSC based on a combined combat-related disability rating of 100 percent effective 1 March 2007. 
The applicant was told by DFAS that since his monthly CRSC entitlement may not exceed his monthly gross retired pay, his CRSC entitlement is $631.00.

12.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1) as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

14.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, his records do not show that he was found unfit for duty or that he suffered from any medical conditions while he was in the Army or the USAR which would have required him to be processed for discharge through medical channels.  There is no basis for correcting his records to show that he was discharged from the Army for medical reasons.

2.  The VA records provided by the applicant indicate he has been awarded compensation for the medical conditions which that agency has determined to be related to military service.

3.  There is no evidence in the available record nor has the applicant submitted any evidence to show that he earned retirement points during his service in the USAR and that he was not credited with the points he contends he earned.  However, if he has evidence that he should be credited with additional retirement points for his service while he was a member of the Army and the USAR, he should contact AHRC.  That agency can update his retirement point history statement with evidence showing he earned additional points.

4.  Once the applicant has obtained an updated retirement point history statement from AHRC, he should forward his statement to the appropriate USAF agency and request that his retirement points be recalculated for retired pay purposes.

5.  In view of the foregoing, there is no basis for crediting him with any additional retirement points as he requests.

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)                                         AR20100013294



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ABCMR Record of Proceedings (cont)                                         AR20100013294



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