IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100016605 


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 Army National Guard (ARNG) honorable discharge to a medical disability under honorable conditions discharge.

2.  The applicant states he was recommended for a medical duty retention board (MDRB) evaluation on 18 June 1996 for AODM (adult onset diabetes mellitus).  He waited from 1996 to 2001 to have this issue addressed.  Finally, a board determined he was medically disqualified for retention with a recommendation to separate him as his medical condition made him unsuitable to perform his duties as a tank mechanic.  He adds that his unit, the 372nd Forward Support Battalion, deployed in November 2002.  He was initially told he would deploy with the unit but he was later told he could not do so due to his medical condition.  He ultimately retired on 3 March 2003.  Because there was a finding of unfitness for duty in his medical records prior to his separation, a medical retirement or separation was expected and was justified.  He noticed that the medical documents were prepared by another doctor over a year after he had retired.  He believes the paperwork fell through the cracks because of the deployment of his unit.  He previously had a heart attack in 1996 and he knew it would be difficult to carry out his military commitment.  Yet, he continued to serve faithfully.  The error made in his records is not only wrong but also unfair.

3.  The applicant provides:

* a binder containing his civilian medical records (related to diabetes, eyes, and kidney)
* 
a binder containing Department of Veterans Affairs (VA) medical records
* selected ARNG medical records, charts, examinations, reports, and notes
* a memorandum to him, subject:  Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* his National Guard Bureau (NGB) 22 (Report of Separation and Record of Service)
* Orders 079-1024, dated 20 March 2003, assigning him to the Retired Reserve, effective 3 March 2003

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 9 May 1954.

3.  Having had prior enlisted service in the U.S. Marine Corps, he enlisted in the Texas ARNG (TXARNG) on 28 January 1982 and he held military occupational specialty (MOS) 11B (Infantryman).  He was honorably discharged from the ARNG on 1 October 1982.

4.  Prior to his discharge from the ARNG, on 23 July 1982, he executed a 6-year enlistment in the U.S. Army Reserve (USAR).  He followed that with a 3-year enlistment in the TXARNG on 4 March 1987.  He also executed a 3-year extension on 10 February 1990 and a 4-year extension on 9 January 1999.  

5.  He also held MOS 63H (Track Vehicle Repairman), served in various positions with the 372nd Combat Support Battalion, Dallas, TX, and attained the rank/grade of sergeant (SGT)/E-5.

6.  On 10 June 2001, he underwent a medical examination that resulted in a finding of "not qualified for retention/duty."  The attending physician indicated the 

applicant was not retainable in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and that he should follow up with an MDRB.

7.  On 29 January 2002, the State of Texas, Adjutant General's Department, Austin, TX, issued the applicant a 20-Year Letter.

8.  On 20 March 2003, the same department published Orders 079-1024, honorably discharging the applicant from the ARNG and assigning him to the Retired Reserve.  The NGB Form 22 he was issued shows he completed
26 years, 3 months, and 12 days of total service for pay.

9.  On 15 December 2004, after his discharge from the ARNG, he was determined to be non-deployable.  He had a medical condition, not in good control that might cause sudden incapacitation; therefore, he was not recommended to work on certain machines with moving parts and walking alone for prolonged periods.

10.  His record contains various DA Forms 2166-7 and 2166-8 (NCO (Noncommissioned Officer) Evaluation Report) for the periods indicated below.  He was rated "fully capable" with "successful" overall performance, and "superior" overall potential.  He met the height and weight standards and took the physical fitness test whenever it was conducted.  In one report (200012 through 200111), he was on a physical profile, but the rater indicated the "profile does not restrict his ability to perform the requirements of his duty position."

* 200012 through 200111
* 199912 through 200011
* 199812 through 199911
* 199612 through 199711
* 199512 through 199611
* 199412 through 199511

11.  The applicant will turn 60 years old on 9 May 2014.

12.  His NGB Form 23B (ARNG Retirement Points History Statement) shows he completed 21 years, 3 months, and 12 days of qualifying service for non-regular retirement.  It shows he would have completed 15 years of qualifying service for non-regular retirement on or about 21 November 1996.

13.  He submitted three binders containing his civilian medical records (related to diabetes, eyes, and kidney), VA medical records, and selected ARNG medical records, charts, examinations, reports, and notes.  The records he submitted show he had been diagnosed by the VA and/or civilian doctors of the medical conditions of: diabetes mellitus, chronic kidney disease secondary to diabetic nephropathy, hyperlipidemia, hypertension, renal insufficiency, sleep apnea, and retinopathy.  However, none of the records he submitted show:

* he incurred an illness or injury while on active duty
* a line of duty determination was made related to any injuries or illnesses
* medical doctors recommended his entry on the physical disability evaluation system (PDES)
* he underwent an MOS/Medical Retention Board
* he was referred to a medical evaluation board (MEB) or physical evaluation board (PEB) 

14.  During the processing of this case, on 11 February 2011, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official stated:

	a.  in consultation with the Surgeon's Office, the medical evidence shows the applicant should have been administratively discharged in June 1996 instead of being allowed to remain the ARNG until he was transferred to the Retired Reserve in March 2003.

	b.  the applicant's 1996 physical identified a medically disqualifying disease and the medication prescribed to treat it in Army Regulation 40-501, chapter 3. The findings caused the applicant to be medically disqualified for retention.  The medical condition was determined not to have been occurred in the line of duty.

	c.  it appears the applicant was not administratively discharged due to an administrative oversight.  A retention physical was performed in 2001 and his medically disqualifying disease and medication again resulted in him being 
recommended for administrative discharge for a non-line of duty medical condition.  By this time, the applicant had served enough years to qualify for retirement based on length of service.  

	d.  it is unclear why the applicant was transferred to the Retired Reserve allowing him early retirement benefits before age 60.  He did not appear to qualify for this transfer as his condition was both deteriorating and permanent.  His characterization of service should remain the same. 

15.  On 14 February 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. On 3 March 2011, the applicant submitted a rebuttal in which he essentially stated:

	a.  in 2001 he repeatedly asked to go before the medical review board and he submitted his request in various letters.  He even threatened to go to the Inspector General because he had been denied the opportunity to go before a medical review board.

	b.  he did not intentionally tell anyone or did anything to waive his right to go before a board for a medical evaluation.  He never told anyone he wanted a
20-Year Letter.  His unit appears to have taken the easy way out in retiring him.  

	c.  he did his job and served his country faithfully.  He questions the TXARNG's blatantly ignoring the recommendation made by a medical officer to send him to a medical board.  He should receive a medical discharge.

16.  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 PDES, 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 for training.  

17.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that Reserve Component (RC) Soldiers with a non-duty related (NDR) medical condition that are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  The process was designed to give the Soldier with an NDR impairment the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits.

18.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent (%).  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30%.

19.  Title 10, U.S. Code, section 12731a at the time, stated a member of the Selected Reserve who no longer met the qualifications for membership in the Selected Reserve solely because the member was unfit because of physical disability could, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was diagnosed with various ailments throughout his military service.  However, there is no evidence that any of his medical conditions, to include adult onset diabetes mellitus, occurred while on active duty or that a line of duty determination was made for any of his conditions or that any of his ailments rendered him unfit for service.  Accordingly, he was not referred to the PDES. 

2.  In order to be referred to the PDES, unfitting medical conditions must have been incurred while the member was entitled to basic pay.  It appears a command surgeon determined his conditions were unfitting in the sense that they precluded meaningful activity from a military point of view, specifically mobilization, and that the applicant should not be retained in the ARNG.  He presumably made a determination that his condition was not aggravated by service; therefore, he was not eligible to undergo an MEB.  An MEB is different than what the applicant calls an MDRB.

3.  It is clear from his evaluation reports, reenlistments and extensions, and unit participation that his medical conditions did not affect his ability to perform in his grade and MOS, at least through November 2001, and there was no reason to refer him to the PDES.  Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, he could not have been issued a medical discharge or retirement for physical disability.  

4.  It is unclear if he requested an NDR PEB; however, even if he did so, an NDR PEB does not assign a disability rating.  It simply determines fitness or unfitness. The Department of Defense (DOD) affords RC Soldiers not on active duty and pending separation for medical disqualification for nonservice-connected impairments the right to a PEB fitness determination.  Referral is not mandatory, but upon the request of the Soldier.

5.  Further, if a medical duty retention board had actually convened in June 1996 and found the applicant unfit for retention, it is possible that he would not have been eligible for a non-regular retirement at age 60, as he is now.  It appears that he would not have completed 15 years of qualifying service until November 1996

6.  In view of the foregoing evidence, 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)                                         AR20100016605



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ABCMR Record of Proceedings (cont)                                         AR20100016605



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