BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20100023640 


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:

* He be declared unfit for duty as of 1999 due to degenerative disc disease
* He be awarded Reserve retirement at age 60 on 23 September 2015
* In the alternate, he requests the issuance of a Notification of Eligibility for Non-Regular Retired Pay at Age 60 (15-Year Letter) instead of being discharged 

2.  The applicant states:

* He suffered a service-aggravated injury while on active duty for more than 30 days in 1999; his injury caused him not to meet retention standards
* He was released from active duty and received incapacitation pay for 2 years
* While receiving incapacitation pay, he was not sent to a Fit For Duty Board (FFDB) or a medical evaluation board (MEB)
* He was discharged with 18 years of service without a 15-year letter
* He was ordered to active duty on 30 May 1999 and served in Kosovo
* After coming on active duty, he aggravated his lower back in the line of duty which resulted in a herniated disc
* He was placed on incapacitation pay subsequent to his discharge
* He underwent a lumbar nerve root decompression at Bethesda in August 2000
* 
He remained unable to serve and on incapacitation pay but he was never afforded the option of an FFDB
* After release from active duty, he was awarded service-connected disability compensation by the Department of Veterans Affairs (VA)

3.  The applicant provides:

* Officer Record Brief
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 January 2000
* Orders 99-089-050 (orders to active duty)
* Medical records, progress notes, inpatient treatment records, vital signs, consult sheets, and operative reports
* Multiple Leave and Earnings Statements (LES)
* Orders 354-2227 (release from active duty)
* DA Form 3349 (Physical Profile)
* VA rating decision

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's records show he was born on 23 September 1955.  He enlisted in the U.S. Marine Corps (USMC) on 14 September 1974.  He was released from the USMC on 15 September 1976 after having completed 2 years of creditable active service and he was transferred to the UMSC Reserve (USMCR).  He remained in the USMCR from 16 September 1976 to 13 September 1980.

3.  He enlisted in the New Jersey Army National Guard (NJARNG) on 26 March 1985.  He completed Officer Candidate School and he was honorably discharged from the NJARNG on 7 August 1986 to accept a commission.

4.  He was appointed as a second lieutenant in the NJARNG and executed an oath of office on 8 August 1986.  He entered active duty on 10 June 1987 and completed the Armor Officer Basic Course.  He was honorably released from active duty on 22 October 1987 to the control of the ARNG.

5.  He was discharged from the ARNG on 5 August 1989 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

6.  He was ordered to active duty in support of Operations Desert Shield/Storm on 2 January 1991 and subsequently served in Southwest Asia.  He was released from active duty on 23 April 1991.  

7.  He was promoted to captain (CPT) in the USAR with an effective date of 16 September 1994 and a date of rank of 6 August 1993.

8.  He was again ordered to active duty on 2 May 1999 and subsequently served in Germany from 9 to 11 May 1999 and Bosnia from 11 May to 18 December 1999.

9.  He was honorably released from active duty on 3 January 2000 by reason of completion of his required service and he was transferred to the USAR Control Group (Reinforcement or Individual Ready Reserve (IRR)).

10.  In connection with his release from active duty, he received a release from active duty Officer Evaluation Report (OER) that covered the period 12 May 1999 through 17 December 1999.  This OER shows he passed the Army Physical Fitness Test and met the height and weight standards.  His rater rated his performance as "outstanding - must promote" and his senior rater rated his promotion potential as "best qualified." 

11.  He was considered for promotion to major (MAJ) by the 7 March 2000 Reserve Components Selection Board (RCSB) but he was not selected.

12.  He was again considered for promotion to MAJ by the 6 March 2001 RCSB but he was not selected. 

13.  He was honorably discharged from the USAR Control Group (Reinforcement) on 31 May 2002 after having twice failed selection for promotion to MAJ.  His Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) shows he completed 10 years and 2 days of qualifying service for non-regular retirement.

14.  He submitted:

	a.  Record of inpatient treatment, dated 13 May 1999, which shows he had a diagnosis of thoracic or lumbosacral neuritis or radiculitis, unspecified and sciatica.  He underwent the procedures of injection of an agent into his spinal canal, computerized axial tomography, and x-ray of the lumosacral spine. 

	b.  Multiple progress notes and chronological records of medical care, dated on various dates in May 1999, and related to pain in his leg, foot, and back.

	c.  Operative report, dated 20 August 2000, related to diskectomy and foraminotomy operations.

	d.  Multiple LESs from March to July 2002, showing he received incapacitation pay.

	e.  DA Form 3349, dated 6 December 1999, showing he was issued a temporary physical profile for lumbar disc herniation.  The profile assigned him functional limitations.

	f.  Operation report, dated 20 August 2000, which shows he underwent a left S1 radiculopath, status post left L5-S1 nerve root decompression in 1996 and an L3-4 right-sided nerve root decompression in June of 2000. 

	g.  VA rating decision, dated 19 July 2010, which shows he was awarded service-connected disability compensation for status-post discectomy of the lumbar spine and surgical scar as a residual lumbar surgery associated with status-post discectomy of the lumbar spine.

15.  An advisory opinion was obtained on 13 October 2011 from the Office of the Surgeon General (OTSG) in the processing of this case.  An OTSG official stated that the applicant has a past medical history of lumbar laminectomy.  His degenerative disc disease was significant enough in 1995 to warrant surgical intervention prior to starting active duty.  Nevertheless, there is no evidence that the applicant did not meet retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) prior to his release from active duty in January 2000.  Based on his current submission, he did not meet referral criteria to the physical disability evaluation system for an MEB.  His counsel submitted a rebuttal on 9 November 2011 wherein he states that the advisory opinion fails to address the fact that the applicant did in fact have an unfitting condition. 

16.  Title 10, U.S. Code (USC), section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement.  It states that a person is entitled, upon application to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

17.  Title 10, USC, section 12731b provides a special rule for members with physical disabilities not incurred in the line of duty.  It states, in pertinent part, that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes.  This special provision of the law is applicable only to members who are medically disqualified for continued service in a RC.  

18.  Army Regulation 635-40 (Physical. Evaluation for Retention, Retirement, or. Separation) prescribes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  

19.  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. However, an award of a higher VA rating does not establish error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant raises several issues, including medical unfitness, Reserve retirement, and/or alternatively the issuance of a 15-Year Letter in order to be eligible to receive non-regular retired pay at age 60.  

2.  It is important to understand that according to Army Regulation 635-40, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

3.  With respect to his medical condition, it is clear that the applicant complained from low back pain that dated back to 1995 and he underwent certain procedures related to his medical condition.  He was even issued a temporary physical profile that placed certain limitations on certain activities.  However:

* Nowhere in his records is there any evidence that shows any medical condition rendered him medically unfit
* He was never issued a permanent physical profile related to any injury/illness on or off duty
* On the contrary, his OER clearly shows he performed his job and was rated fully qualified when he was released from active duty by reason of completing his required service; not due to any medical reasons
* He was ultimately discharged from the USAR due to twice failing to be selected for promotion; again, not for medical reasons
* Since there was no unfitting condition, there was no reason for an FFDB

4.  With respect to the 15-Year Letter:

	a.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  However, a member of the Selected Reserve of a RC who is medically disqualified for continued service in an RC may be considered as having met the service requirement and may be issued a notification if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes. 

	b.  The evidence of record in this case confirms the applicant completed 10 years and 2 days of qualifying service toward non-regular retirement.  Additionally, upon his release from active duty in 2000, he was placed in the IRR; not in the Selected Reserve.  But even if he were found to be medically unfit for retention in the USAR, he would not have qualified for a 15-year letter because he was not in the Selected Reserve.

5.  The law with respect to non-regular retirement is clear.  In order to receive retired pay at age 60, a Soldier must have completed 20 qualifying years.  The law also makes a special rule for members who completed at least 15 but less than 20 years.  If a member no longer meets the qualifications for membership in the Selected Reserve because of unfitness due to physical disqualification, the member may be issued a 15-year letter.  However, this option is available only in those cases where a physical disability is not incurred in line of duty.  Soldiers in such situations do not undergo an MEB or PEB for rating and/or compensation. 

6.  Although the LES's he submitted show he received incapacitation pay after his release from active duty in 2000, he did so while in the IRR, not in the Selected Reserve. 

7.  An award of a rating by another agency does not establish an error on the part of the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  

8.  In view of the foregoing, he is not entitled to the 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)                                         AR20100023640





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ABCMR Record of Proceedings (cont)                                         AR20100023640



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