BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100013843 


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 correction of his records to show he was medically retired based on physical disability.

2.  The applicant states he was supposed to be retired due to physical disability; however, he was erroneously retired based on his years of service.

   a.  He states he attempted to correct this matter through Inspector General channels and he was assured the error would be corrected; however, the matter has not been corrected.

   b.  He adds that the Social Security Number (SSN) shown on his medical evaluation document is incorrect and should be corrected.

3.  The applicant provides copies of several documents related to his military service (i.e., enlistment, extension, separation, etc.) and 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 born on 13 January 1957.  He enlisted in the U.S. Army Reserve (USAR) on 8 June 1978.  Upon completion of training he was awarded military occupational specialty 63B (Power Generator and Wheel Vehicle Mechanic).

3.  U.S. Army Reserve Personnel Command, St. Louis, MO, letter, dated 9 July 1998, also known as the "20-Year Letter," notified the applicant that, having completed the required years of service, he will be eligible for retired pay upon application at age 60.

4.  A DD Form 2808 (Report of Medical Examination) shows the applicant was examined by a physician at the Veterans Affairs Medical Center, San Juan, PR, on 14 September 2002, for the purpose of his over 40 medical examination for continued service in the USAR.  Item 74a (Examinee/Applicant) shows the physician found the applicant qualified for service.

5.  U.S. Army Reserve Command, Fort McPherson, GA, Orders 04-233-00058, dated 20 August 2004, released the applicant from his USAR unit on 20 August 2004 based upon completion of 20 or more years of qualifying service for retired pay at age 60 and assigned him to the USAR (Retired Reserve).

6.  An Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) shows the applicant was transferred to the USAR (Retired Reserve) effective 21 August 2004.  At the time he had completed 26 qualifying years for retirement.  This form shows he never performed extended active duty (aside from his initial active duty for training in 1978/1979, he had a maximum of 58 days of active duty, during retirement year ending 7 June 1998); and had performed a maximum of 67 inactive duty points, also during retirement year ending 7 June 1998.

7.  In support of his application, the applicant provides the following documents:

   a.  A DD Form 214 (Report of Separation from Active Duty) that shows he was ordered to active duty for training (ADT) on 6 October 1978, he was honorably released from ADT on 1 May 1979, and transferred to his USAR unit.  At the time he had completed 6 months and 28 days of net active service and
3 months and 28 days of prior inactive service.

   b.  An email message that shows he was scheduled for a medical evaluation on 21 June 2003 at Fort Buchanan, PR.

   c.  Headquarters, 65th U.S. Army Regional Support Command, Fort Buchanan, memorandum, subject:  Medical Evaluation of [Applicant], dated
19 July 2003, that shows he was evaluated for Bipolar Disorder, Chronic Pain Syndrome, and Spondylosis by a physician from the 369th [medical unit].  It states "[a]t present this Soldier is unfit for duty according to Army Regulation
40-501 (Standards of Medical Fitness), chapter 3, paragraphs 3-35 and 3-36.  It also shows he was recommended for medical evaluation board (MEB) procedures and granted a permanent profile.  [The applicant's SSN is incorrectly recorded on this document as xxx-xx-x8xx instead of xxx-xx-x5xx].

   d.  A DA Form 3349 (Physical Profile), dated 3 February 2004, that shows he was issued a permanent profile based on his medical conditions of Bipolar Disorder, Chronic Pain Syndrome, OA [Osteoarthritis], and Spondylosis.  His assignment limitations included no handling of weapons, no use of vehicles or marching, and no physical training until final disposition in Fort Gordon, GA.  [The applicant's SSN is correctly recorded on this document.]

8.  In connection with the processing of this case, on 28 April 2010, an advisory opinion was obtained from the Chief, Transition and Separations, U.S. Army Human Resources Command, St. Louis (USAHRC-STL).  The advisory official provided the results of his review of the documents furnished by the applicant and in his military service records.

   a.  The advisory official states a review of the data and documents confirms that the applicant was a drilling Reservist who was submitted by his Reserve unit for a medical evaluation to determine his medical fitness for mobilization and retention.  The medical board determined he was no longer a mobilization asset.

   b.  The applicant was not on active duty and the board determined that his medical condition was not incurred as a direct result of active duty service.  As the applicant had already been issued a "20-Year Letter," he was not eligible for consideration by the Physical Disability Agency for possible temporary or permanent disability retirement.  Accordingly, he was properly transferred to the Retired Reserve.

9.  On 29 April 2010, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  On 10 May 2010, the applicant responded to the advisory opinion.

   a.  The applicant disagrees with USAHRC-STL's advisory opinion.
   b.  He states that on 21 June 2003 he was evaluated for retention in the USAR and found unfit for duty.  On 19 July 2003, Colonel A---- A. R---- F----- recommended him for MEB processing.  He adds that Mr. R------- P--------- of the 65th Regional Support Command informed him he would be medically retired from service within 30 days, but that did not occur.

   c.  He concludes that the processing of his medical retirement was not completed and this is an error that must be corrected.

10.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Chapter 8 outlines the rules for processing through the disability system Soldiers of the Reserve components who are on active duty for a period of less than 30 days or on inactive duty training.  A change in the law in 1986 provided for disability processing of Soldiers who incur or aggravate an injury or disease in the line of duty while performing inactive or active duty training.  Referral for processing does not mean an automatic entitlement to disability compensation.  Once referred, a determination must be made whether the disability was the proximate result of performing duty.  Proximate result establishes a causal relationship between the disability and the required military duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be referred to a physical evaluation board (PEB) for a disability rating determination due to a service-connected medical condition and medically retired based on physical disability because he was found unfit for duty in the USAR based upon a medical examination conducted on 21 June 2003.

2.  Records show that the physician conducting the applicant's medical examination on 21 June 2003 found the applicant unfit for duty.  Records show the applicant was not on active duty and it was determined that his medical condition was not incurred as a direct result of service while entitled to basic pay.

3.  Considering the applicant's medical conditions (Bipolar Disorder, Chronic Pain Syndrome, and Spondylosis) and the fact that his only period of extended active service was 6 months and 28 days during the period 6 October 1978 to 1 May 1979, it appears a reasonable determination was made that those disabilities were not the proximate result of his performing duty.  Therefore, he was not entitled to consideration by an MEB/PEB.  In view of the foregoing, there is no basis for granting the requested relief.

4.  The applicant is advised that this decision does not preclude him from pursuing a claim for a service-connected medical condition with the Department of Veterans Affiars.

5.  The evidence of record shows that the applicant's SSN is incorrect on the memorandum documenting his 21 June 2003 medical examination.  Therefore, it would be appropriate to correct the error.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  __x______  ____x_  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing an appropriate document to correct Headquarters, 65th U.S. Army Regional Support Command, Fort Buchanan, PR, memorandum, subject:  Medical Evaluation of [Applicant], dated 19 July 2003, to show his correct Social Security Number.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a medical retirement based on physical disability.




      _________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)                                         AR20100013843



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ABCMR Record of Proceedings (cont)                                         AR20100013843



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