DOCKET NUMBER:  AR20110004721 


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 reconsideration of his earlier request that his discharge from the United States Army Reserve (USAR) be changed to permanent disability retirement.  

2.  The applicant states in the winter of 2003 through the summer of 2004 he tried to have a physical examination from Army medical personnel at Fort Campbell, Kentucky, to no avail.  He is requesting reconsideration of his request based on the new evidence and documents he is providing.  He states he did forward the supporting documentation to the USAR Command Surgeon who determined he was fit for duty.  He claims his concern is the Command Surgeon was unaware of his entire situation.  He states his weight alone (285 pounds) should have been an indicator of his poor physical and mental health.  He also claims multiple prescriptions for service connected injuries and personal health maintenance medications should also have been key indicators of a declining health and quality of life.  He states he would like the Board to take special notice of effective dates concerning the disability ratings assigned by the Department of Veterans Affairs (DVA) which predate the USAR Command Surgeon's decision. 

3.  The applicant provides the following documents in support of his application:

* Officer Evaluation Report (OER) Referred Report Packet and OERs for
1 June 1997 through 31 May 1998 and referred OER for 1 June 1998 through 31 May 1999
* USAR Command Surgeon Fitness Review Packet


* Electronic Mail (e-mail) Messages, dated between 23 August and 
7 September 1999
* Resignation Packet
* DVA Medical Records and Rating Decisions

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090013887, on 2 March 2010.

2.  During the original review of the case, the Board determined that based on the fitness determination of the USAR Command Surgeon and the absence of a Physical Evaluation Board (PEB), the applicant could not have been issued a medical discharge or retired by reason of physical disability.  The Board further determined the applicant was properly discharged based on his twice being not selected for promotion to Major.  The Board further concluded given the DVA has no authority or obligation to determine fitness for military service, its disability rating decisions were based solely on service connected medical conditions that were not considered unfitting by proper military medical authority.  

3.  The applicant now provides OERs and an OER referral packet, DVA medical records and rating decisions, and other miscellaneous documentation as new evidence.  

4.  The evidence of record shows after serving in the TNARNG in an enlisted status for 1 year, 8 months, and 28 days, on 17 May 1989, the applicant was commissioned a second lieutenant in the TNARNG.  He was promoted to captain on 20 June 1997, and was twice not selected for promotion to major in 2002 and 2003.  

5.  On 30 October 1999, the applicant resigned from the TNARNG and was transferred to the USAR Control Group (Reinforcement).  

6.  On 7 August 2004, the applicant was notified he was not selected for promotion to major by a Department of the Army (DA) Reserve Component (RC) Mandatory Board that convened on 2 March 2004.  The applicant was advised that as a result of this second non-selection he must be discharged and that his established removal date was not later than 1 January 2005, unless he was eligible to transfer to the Retired Reserve.  

7.  On 24 August 2004, the USAR Command Surgeon, after reviewing the applicant's medical records and information provided by the applicant and his command, determined the applicant was medically qualified for continued military service.  

8.  On 1 January 2005, the applicant was discharged from the USAR.

9.  The applicant's record is void of any indication he served on active duty in any capacity or status from 1 November 1999 through the date of his discharge from the USAR.

10  The applicant provides DVA rating decisions that indicate he was granted service connection for the following medical conditions on the dates and at the disability percentage indicated:

* 1 April 1991, 10 percent for low back traumatic arthritis which was increased to 20 percent effective 15 December 2003
* 3 February 2000, 0 percent or left hip radiculopahty which was increased to 10 percent effective 11 July 2008.  
* 21 June 2004, 30 percent for major depression with anxiety

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 or her office, grade, rank, or rating  Chapter 3 provides guidance on standards of unfitness because of physical disability.  It stated the mere presences of an 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 

12.  Chapter 8 of the same regulation provides guidance on the eligibility of Reserve Component (RC) Soldiers for disability processing.  It states that Soldiers of the RC are eligible for processing for disability if a disability is incurred  from an injury determined to be the proximate result of performing duties in one of the statuses listed below:

	a.  Annual Training (AT), active duty special work (ADSW), active duty for training (ADT) with or without pay, or temporary tour of active duty (TTAD) under a call or order that specifies a period of 30 days or less, to include full time training duty (FTTD) under 32 USC 502f, 503, 504, and 505; 
	b.  Inactive duty training (IDT) including IDT without pay under competent orders. While enroute to or from IDT, a Soldier of the RC is not performing duty. Therefore, Reservists who incur injuries while in a travel status to IDT are not eligible for referral into the disability system. However, in exceptional cases, where there is evidence that the Soldier may actually be performing duty while in a travel status, the case should be referred to the PEB for consideration of eligibility; or 

	c.  Active Duty Training (ADT) under 10 USC 10148(a). (This is usually a 
45-day tour required by law because of failure on the part of the RC Soldier to perform other required training duty. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his earlier request for permanent disability retirement and the new evidence submitted has again been carefully considered.  However, there remains an insufficient evidentiary basis to support granting the requested relief.  

2.  The evidence of record confirms the applicant was notified of his second non-selection for promotion to major on 7 August 2004, and at that time was notified that he had to be discharged, or transferred to the Retired Reserve if eligible, not later than 1 January 2005.  It further shows the USAR Command Surgeon evaluated the applicant's medical record, and other available independent medical evidence available at the time, and determined the applicant was fit for duty.  As a result, it appears the applicant was appropriately discharged as a result of his twice being not selected for promotion on 1 January 2005.  

3.  The DVA documentation submitted by the applicant confirms he is being compensated for service connected conditions; however, there is no medical evidence of record or independent evidence submitted by the applicant that shows these conditions were medically unfitting for further service at the time of his second non-selection for discharge, or at the time of his discharge.  In addition, it is clear the applicant was never denied further service based on a medical disqualification.  As a result, there is insufficient evidentiary basis to support granting a disability retirement.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement and/or support amendment of the original Board decision in this case.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20090013887, dated 2 March 2010.



      _________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)                                         AR20110004721



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ABCMR Record of Proceedings (cont)                                         AR20110004721



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