IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110004016 


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 processing through the physical disability evaluation system (PDES) and that his discharge from the Puerto Rico Army National Guard (PRARNG) be changed to "Disability Retirement" vice "Non-Regular Retirement." 

2.  The applicant states:

	a.  He was placed in the Retired Reserve by reason of a permanent profile given by a Fit for Duty Determination Board (FFDDB) conducted on 20 April 2006.  He was not given the opportunity to elect referral to a medical evaluation board (MEB) or physical evaluation board (PEB) for proper medical disposition.  He should have been processed in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and entered into the PDES.

	b.  The condition for which he was declared unfit for retention clearly showed it was acquired while attending annual training during July 2004.  He was diagnosed with rheumatic arthritis (he most likely means rheumatoid arthritis) with orders for active duty and neither his commander nor the PRARNG ensured a line of duty (LOD) was completed prior to his separation.  He should have been referred to the PDES under the presumption of LOD rule.

3.  The applicant provides:

* two DA Forms 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 July 1982 and 8 February 2003
* a Standard Form (SF) 600 (Chronological Record of Medical Care)
* a DA Form 7349 (Initial Medical Review - Annual Medical Certificate), dated 7 May 2006
* a DA Form 3349 (Physical Profile), dated in May 2006
* a PRARNG FFDDB Acknowledge Statement, dated 7 May 2006
* a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 August 2005

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.  Having had prior ARNG service, the applicant again enlisted in the PRARNG on 2 December 1994.  He held military occupational specialties 11B (Infantryman) and 13B (Cannon Crewmember).  He served on active duty from 12 September 2002 to 8 February 2003.

3.  There is no evidence of record that shows he served on active duty after 8 February 2003.

4.  He was honorably discharged from the PRARNG on 8 May 2006 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-35l(8), by reason of being medically unfit.  The National Guard Bureau (NGB) Form 22 he was issued shows he completed 16 years, 5 months, and 7 days of total service for retired pay.

5.  On 1 November 2006, by memorandum, the PRARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-year letter).  This memorandum notified him that he had completed at least 15 years of qualifying service and he would be eligible for retired pay upon application at age 60.  It also shows he requested transfer to the Retired Reserve.

6.  In the processing of this case, on 23 September 2011, an advisory opinion was received from the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request to be processed through the PDES and his discharge changed to "Disability Retirement" vice "Non-Regular Retirement."  The advisory official stated in consultation with the NGB Surgeon's office, it was determined the applicant was properly discharged.  He was not referred to an MEB/PEB as he had not been on active duty for more than 30 days when he was diagnosed with rheumatoid arthritis.  The advisory official further stated, "The Soldier was discharged after a fit for duty evaluation was conducted by the PRARNG on 7 May 2006.  The Soldier was counseled and also signed the statement electing transfer to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60.  The State concurs with this recommendation."

7.  On 26 September 2011, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, he did not respond.

8.  The applicant provided the following:

	a.  An undated SF Form 600 wherein it shows he was treated for rheumatoid arthritis.  The doctor stated, "He is unable to work in [his] civilian job, can't perform military duties."

	b.  A DA Form 7349, dated 7 May 2006, wherein the applicant noted he was being treated for rheumatoid arthritis and he had received an official examination on 11 February 2006.  He authenticated this form by placing his signature in the appropriate block. 

	c.  A DA Form 3349, dated 7 May 2006, which shows he received a permanent physical profile for rheumatoid arthritis that rendered him unfit for retention as outlined in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  This form also shows he did not meet the requirements for an MEB/PEB and he was recommended for separation.

	d.  An FFDDB Acknowledge Statement, dated 7 May 2006, wherein it shows he was given a copy of the DA Form 3349 and he elected the non-duty related (NDR) option of requesting transfer to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60.  He did not elect the option to request a fitness of duty board with PEB.  He authenticated this form by placing his signature in the appropriate block.


9.  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.  Under the laws governing the 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 training.

10.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states Reserve component (RC) Soldiers with NDR medical conditions who 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 is designed to give the Soldier with NDR impairments the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits.

11.  Department of Defense (DOD) Instruction 1332.38, definition E-2.1.20, defines NDR impairments as "impairment of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation.  Members with NDR impairments are eligible to be referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits.  The determination of whether a case is forwarded to the PEB as an NDR case (as opposed to a duty-related case) rests with the RC."

12.  Title 10, U.S. Code, section 12731b, provides a special rule for members with physical disabilities not incurred in the line of duty.  It states that in the case of a member of the Selected Reserve who no longer meets the qualifications for membership because the member is unfit because of physical disability, the Secretary may determine the member as having met the service requirement for the purpose of section 12731 of this title and provide the member with notification required if the member completed at least 15 years but less than 20 years of qualifying service for retirement purposes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been processed through the PDES and his discharge from the PRARNG should be changed to "Disability Retirement" vice "Non-Regular Retirement."

2.  In order to be referred to the PDES, unfitting medical conditions must have been incurred while the member was entitled to basic pay.  The evidence of record does not show and the applicant did not provide any evidence that shows he incurred an unfitting medical condition while on active duty that required an LOD or referral to the PDES.

3.  The applicant contends he was diagnosed with rheumatoid arthritis while attending annual training in July 2004.  He provides no evidence showing this.  In any case, being diagnosed with a condition on a specific date does not necessarily meant the condition was incurred on that date.  In the case of rheumatoid arthritis, it is unlikely he incurred the condition during a short period of annual training.  

4.  The applicant was discharged from the ARNG on 8 May 2006 by reason of being medically unfit.  In the absence of compelling evidence to show he actually developed the condition, rather than just being diagnosed with it, while he was entitled to basic pay, it is presumed he was properly counseled and given several options as required by regulation, including the option to request an NDR PEB.  He chose to transfer to the Retired Reserve.

5.  On 1 November 2006, he was issued a 15-year letter as he had completed at least 15 years, but less than 20 years, of qualifying service for non-regular retirement, he was found medically disqualified for retention in the ARNG, and he elected to transfer to the Retired Reserve.

6.  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)                                         AR20110004016



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ABCMR Record of Proceedings (cont)                                         AR20110004016



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