IN THE CASE OF:	  

		BOARD DATE:  31 January 2012

		DOCKET NUMBER:  AR20110013701 


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, in effect:

   a.  reinstatement to active duty for the period 1 October 2006 to 31 August 2007 with an adjusted retirement date of 1 September 2007;
   
   b.  adjustment of his pay records to provide for back pay and allowances based on subparagraph a above as if he had not been separated until 31 August 2007;
   
   c.  reimbursement of medical expenses related to surgeries on his foot and back for combat-related injuries; and
   
   d.  replacement of his savings used during this period of time.

2.  He states at his retirement physical it was discovered he needed surgery on his foot and his back which were later determined to be combat-related injuries.  He was told at retirement services he could not postpone his retirement and was not given an opportunity for appropriate treatment of combat-related injuries.  He states he was forced to retire and suffer the burden of no wages, medical bills, and lost savings due to having the surgeries after he departed from the military.

3.  His first surgery was on 22 October 2006 on his left foot which was injured in Iraq and a second back surgery in February 2007.  He states this was one of the most demoralizing periods of his life, the strain of which led to his marriage ending in divorce.   
4.  He provides:

* a Department of Veterans Affairs (VA) rating decision dated 19 February 2009
* Podiatric Medical Associates medical notes
* VA Progress Notes
* a summary of military salary not received; incurred medical expenses; and pain and suffering due to hardship on family
* DD Form 1289 ((Department of Defense) Prescription)

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.  His military records show he enlisted in the Regular Army on 26 September 1986.  He served continuously through reenlistments and attained the pay grade of E-7.

3.  Headquarters, U.S. Army Garrison Fort George G. Meade Orders 318-0012, dated 14 November 2005, released him from active duty effective 30 September 2006 and placed him on the retirement list effective 1 October 2006.

4.  He provided a DD Form 1289, dated 27 July 2006, requesting a podiatry evaluation for treatment for his ganglion dorsal (left foot) and flat feet.  The prescription showed his retirement date of 1 October 2006.

5.  His retirement physical is not available for review.  He provided an email, dated 18 September 2006, in which he appears to indicate to another individual that he did not begin his medical processing in a timely manner in order to complete it; and therefore, he would be unable to begin his new job until after his foot healed following upcoming surgery. 

6.  There is no evidence he requested in writing a change to a later retirement date due to medical reasons.

7.  The applicant provided Podiatric Medical Associates medical notes, dated 13 September 2006.  These notes indicate his office visit was on 17 August 2006 for a podiatric evaluation and complaint of a painful cyst to the dorsal left foot.  He had been seen earlier in the week for his retirement physical and it was suggested he seek further evaluation for the cysts.  The notes indicate the applicant had noticed a lump to the dorsal left foot in 2004 while serving in Iraq. 

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired from active duty on 30 September 2006 for length of service.  He completed 20 years and 5 days of creditable active service.

9.  The applicant provided VA Progress Notes, dated 12 August 2008.  These notes indicate he had a medical record which was a copy of the operative report done on 27 February 2007 from Pinnacle Health Systems in Harrison, PA.  The progress notes show a diagnosis of degenerative disc disease with residual loss of range of motion status post lumber fusion - symptomatic and residual palsy of the medial dorsal cutaneous nerve in the left foot peripheral division supplying the medial portion of the great toe and lateral portion of the second toe, secondary to removal of ganglion cyst - symptomatic.

10.  The applicant provided a VA rating decision, dated 19 February 2009, which in pertinent part, shows he was assigned:

   a.  a 20 percent disability rating for his left foot, status post excision of ganglion cyst of the dorsal aspect of the foot effective 16 April 2008; and
   
   b.   a 20 percent disability rating for degenerative joint disease, lumbosacral spine status post discectomy.
   
11.  A U.S. Army Human Resources Command (HRC) Combat-Related Special Compensation Division memorandum to the applicant, dated 16 March 2009, shows, in pertinent part, that he was given a 20 percent combat-related rating for degenerative arthritis of the spine.  HRC was unable to verify any of his foot conditions as combat-related disability.
  
12.  The applicant provided a summary of his requested reimbursement amounts as shown below:

* military salary and benefits lost because of "forced" retirement while injured with combat-related injuries ($51,154.64)
* medical expenses incurred for two surgeries ($2,674.00)
* pain and suffering due to hardship on his family ($3,000.00)

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  This regulation provides the procedures to implement laws and policies governing voluntary retirement of Soldiers of the Army for length of service. 

   a.  Chapter 12 (Retirement for Length of Service), paragraph 12-12 (Applying for Retirement), of this regulation states:
   
   	(1) Submit requests for retirement on DA Form 2339 (see paragraph
12–13) through the chain of command to the appropriate retirement authority listed in paragraph 12–2.  The retirement authority will notify Soldier in writing of the effective date of the retirement, if approved.
   
   	(2) Before applying for retirement, the Soldier should be firm in his/her decision to retire on a certain date. (See paragraph 12–15.)
   
   	(3) The retirement authority is authorized to set a minimum time for submission of retirement applications.  Soldiers’ retirement applications will be submitted at least 9 months before the retirement date.
   
   	(4) Personnel officers will-
   
   		(a) Require each Soldier who wants to apply for retirement to read this chapter.
   
   		(b) Ensure that each applicant understands section V of this chapter, including the provisions that the Soldier will not be held on active duty beyond the requested retirement date to complete a medical examination.
   
   b.  Paragraph 2-15 of this regulation states the retirement date will not be changed unless, after the application is submitted, events that justify a change in the retirement occur that would cause an extreme hardship to the Soldier or immediate family.  The hardship must have been unforeseen at the time of application.  An application for retirement may not be withdrawn after travel has been performed for retirement.

   c.  Once a retirement order has been issued, it will not be amended or revoked except for extreme compassionate reasons, the best interest of the Army, or when a change in the Soldier’s status prevents retirement on the specified date.
   
   d.  Soldiers retiring after more than 20 years of active duty are required to undergo a medical examination.  The examination will record the Soldier’s state of health and protect the interest of the Soldier and the Government.
   
   e.  The examination will be accomplished (completed) not earlier than 4 months prior to the anticipated date of commencement of transition leave and not later than 1 month before the scheduled date of retirement.
   
DISCUSSION AND CONCLUSIONS:

1.  Medical notes indicate the applicant had noticed a lump to the dorsal left foot in 2004 while serving in Iraq.  His retirement orders indicate his voluntary retirement was approved in a timely manner with an effective retirement date of 30 September 2006.  He contends he was told at retirement services he could not postpone his retirement after he was told at his retirement physical he needed surgery on his foot and his back.  There is no available evidence he was informed at the time that these conditions required surgery.

2.  Army Regulation 635-200 requires each Soldier who wants to apply for retirement to read chapter 12 and that it would be ensured each applicant understood section V of this chapter.  It is reasonable to presume he was well aware of the need to begin his medical processing in a timely manner, particularly if he had medical conditions that would possibly take more than the usual amount of time to resolve.  His retirement physical is not available for review.  However, based on an email provided by the applicant it appears he did not begin the medical processing portion of his retirement related processing in a timely manner.

3.  Once a retirement order has been issued, it will not be amended or revoked except for extreme compassionate reasons, the best interest of the Army, or when a change in the Soldier’s status prevents retirement on the specified date.  There is no evidence he submitted a written request in a timely manner for a change to his retirement date due to medical reasons or that his alleged hardship following retirement would have met the prescribed justification required for approval of a change in his retirement date.  He was accordingly required to be separated on his approved retirement date of 30 September 2006.  As such, there is no error or an injustice.

4.  In view of the above, there is no basis to continue him on active duty through 31 August 2007 and receive military salary and benefits.  As a military retiree, claims for reimbursement of medical expenses incurred after date of retirement would be submitted to TRICARE (tri-service medical care), or he could have received treatment through the VA.  There is no provision or justification for the military to reimburse the applicant for personal expenditures or for alleged pain and suffering due to hardship on his family.

5.  It is regrettable that his transition following retirement was difficult.  However, there is an insufficient basis for granting his request.

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)                                         AR20110013701



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ABCMR Record of Proceedings (cont)                                         AR20110013701



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