IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100022962 


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 change of his reason for discharge from "disability, not in the line of duty - involuntary" to "disability, in the line of duty."

2.  The applicant states his reason for discharge should be "disability, in the line of duty."  Additionally, the applicant states he was not given the opportunity to appeal the patient administrator's decision.  

3.  The applicant provides:

* a DA Form 2173 (Statement of Medical Examination and Duty Status)
* a DD Form 2870 (Authorization for Disclosure of Medical or Dental Information)
* a DA Form 2823 (Sworn Statement)
* his DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* a DA Form 3349 (Physical Profile)
* a DD Form 689 (Individual Sick Slip)
* a Standard Form (SF) 600 (Personal Medical Data)
* his Retention Physical Examination
* a Letter of Diagnosis
* a Patient Lab Inquiry
* his reassignment orders  


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 on 13 June 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31M (Multi-Channel Communications Equipment Operator).  The highest rank/grade he attained while serving during this period of active service was specialist (SPC)/E-4.  The applicant received an honorable release from active duty on 11 June 1981 after completing 2 years, 11 months, and 29 days of active service during this period.

3.  On 13 December 1999, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 3 years in MOS 31U (Signal Support Systems Specialist) as a private first class (PFC)/E-3.

4.  Records show on 13 March 2002, a retention physical examination revealed the applicant was deemed medically fit for retention; however, he was over the maximum weight standard with the following abnormal findings:

	a.  Hypertension

	b.  Elevated Cholesterol

	c.  Low HDL Cholesterol

	d.  Unacceptable Dental

	e.  Hyperglycemic


5.  On 20 June 2002, the applicant was placed on quarters for dizziness and instructed to follow up with his doctor.  Records show the applicant met with a physician and had laboratory tests completed on 20 June 2002.

6.  Records show on 27 October 2004, a review of the applicant's medical records indicated he did not meet retention requirements in accordance with Army Regulation 40-501 (Medical Fitness Standards), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).

7.  A DA Form 199, dated 22 February 2005, indicates that his condition was evaluated and a PEB determined he was unfit for duty.

8.  Records show on 2 March 2005, the PEB reviewed the applicant's rebuttal to the 22 February 2005 PEB's findings and recommendation and stated there was no evidence that his medical problems were service-incurred.

9.  On 9 March 2005, the U.S. Army Physical Disability Agency (USAPDA) informed the applicant they had reviewed his entire case and concluded the case was properly adjudicated by the PEB.  

10.  Orders 06-271-00060, issued by Headquarters, 81st Regional Readiness Command, Birmingham, AL, dated 28 September 2006, as amended by Orders 06-271-00065, same date, involuntarily discharged the applicant from the USAR due to being medically disqualified.

11.  During the processing of this case, on 25 April 2011, an advisory opinion was obtained from the Chief, Veterans Inquiry Branch, Army Personnel Records Division, Fort Knox, KY.  The advisory official opined that:

	a.  the application was reviewed and administrative relief is not warranted.

	b.  in accordance with Army Regulation 40-501, chapter 3, paragraph D, the applicant's diabetes was not incurred in the line of duty.

12.  On 2 May 2011, a copy of the advisory opinion  was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  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.  Army Regulation 600-8-1 (Army Casualty Program) was effective 17 October 1986 and revised in 1994; however, the 1986 version is still used as the LOD authority.  Chapters 39 through 41 dealing with LOD investigations, provide that 
an LOD is conducted to arrive at a determination whether misconduct or negligence was involved in the injury, disease, or death, and to what degree.  Depending on the circumstances of the case, an investigation may or may not be required to make a determination.  The LOD determination is presumed to be in 
LOD without an investigation except in two instances; one is when and injury, disease, or medical condition occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence, and the other when a USAR or an ARNG Soldier is serving on an active duty tour of 30 days or less and is disabled due to disease.

15.  Army Regulation 600-8-1, paragraph 39-2, states that in the case of an injury or death of a USAR or ARNG Soldier while travelling to or from authorized training or duty, a formal investigation must be conducted.  Documentation for an informal investigation typically consists of a DA Form 2173 completed by the military treatment facility and the unit commander, and is approved by the appointing authority, State Adjutant General, or higher authority. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his reason for discharge from "disability, not in the line of duty - involuntary" to "disability, in the line of duty" has been carefully considered and found to have insufficient evidence to support this conclusion.

2.  The evidence of record shows the applicant's separation processing was accomplished in accordance with applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It further confirms that the applicant was only separated after he underwent a comprehensive medical evaluation and examination and it was determined the diabetes condition that resulted in his discharge was not incurred in the line of duty. 

3.  The available evidence shows the applicant was evaluated by a PEB and found medically unfit for service.  

4.  The applicant has not provided any evidence to substantiate his claim that his reason for discharge should be changed to "disability, in the line of duty" or that he was not given an opportunity to appeal the patient administrator's decision.   

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100022962



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ABCMR Record of Proceedings (cont)                                         AR20100022962



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