IN THE CASE OF:	  

		BOARD DATE:  12 January 2012

		DOCKET NUMBER:  AR20110013823 


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, correction of his records to show he retired by reason of physical disability.  He also requests that additional information be obtained from his San Juan Veterans Administration (VA) Medical Center claim.

2.  The applicant states:

* he was found after an accident while he was on active duty
* he was diagnosed with epilepsy as a result of the accident
* he was on medical hold from 2003 to 2005 awaiting separation for medical reasons at the request of his unit
* he was granted a 0-percent medical discharge by a "U.S. Medical Military Board" in Georgia
* he was separated honorably
* obtaining the proper benefits with the government and other institutions in Puerto Rico has become a hardship
* he lost his job as an law enforcement investigator

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 September 1981
* DA Form 2173, dated 14 July 1984
* DA Form 2173, dated 22 August 1988
* VA letter, dated 13 September 1988
* 
DA Form 2173, dated 30 January 2003
* information pertaining to epilepsy and military service

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 was born on 26 December 1957.  He enlisted in the U.S. Army Reserve (USAR) for 6 years on 7 May 1976.  He completed training as a tactical wire operator specialist.  He remained in the USAR through continuous reenlistments and extensions.

3.  On 11 June 2003, the applicant received a Notification of Eligibility for Retired Pay at Age 60 (20- year letter).  He was told he had completed the required years of qualifying Reserve service and was eligible for retired pay on application at age 60 in accordance with Title 10, U.S. Code, chapter 1223.

4.  The applicant was transferred to the Retired Reserve on 8 January 2005.  His USAR Personnel Command Form 249-E (Chronological Statement of Retirement Points) shows he had 21 years, 8 months, and 1 day of qualifying service for retired pay.

5.  The applicant submits a DA Form 2173, dated 8 September 1981, in which he states that while driving on Road 187 from Bayamon towards San Juan, he lost sense and accidentally turned to the left causing an automobile accident with oncoming traffic.  The DA Form 2173 shows he was on active duty for training at the time of the accident and he suffered a head contusion.

6.  He submits two other DA Forms 2173 showing he suffered from seizures on 14 July 1984 and 22 August 1988.  Both forms show his seizures were controlled and he was on medication.  The DA Form 2173, dated 22 August 1988, shows 

the medication levels in his blood were found to be too low.  He submits a VA letter, dated 13 September 1988, showing he was hospitalized from 23 August through 13 September 1988.  He was ordered home on a convalescent period from the date of his discharge from the hospital to 27 September 1988.

7.  The applicant submits a fourth DA Form 2173, dated 30 January 2003, which shows he put his leg in a pot hole during training and felt a lower back pain.  He stated he also received a hit to his face with the butt of his weapon when he fell to the ground.

8.  He submits information that appears to be from a website pertaining to epilepsy and military service.  This information states that according to the Department of Defense, the military discriminates against people with epilepsy because it wants military people to be available for worldwide service at any time with few limitations.  Assignments may be made to areas where medical facilities are nonexistent or inadequately equipped to treat particular disorders.  Although there are provisions for retaining members who develop a medical condition which prohibits them from being assigned to such areas, the size of this population must be kept as small as possible to prevent an inability to deploy personnel in the event of a military emergency.

9.  In his application to the Board, the applicant refers to other evidence that he contends is attached.  Other than the evidence listed in this Record of Proceedings, there is no other evidence attached to his application.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

11.  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 Army Physical Disability Evaluation system, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  The available evidence shows he suffered two seizures and he once "lost sense" which resulted in an automobile accident and a head contusion while a member of the USAR.  The available evidence also shows he was taking medication for his seizures and his seizures were controlled.

3.  However, he has not shown that his epilepsy is service connected.  Having a seizure while in drill status or while activated does not establish service connection.  Although his statement about a 0 percent disability rating suggests that he may have been determined to be medically disqualified and went before a PEB for something, he has also not shown that his seizures were unfitting, having apparently successfully served over 20 years.

4.  The applicant has not shown error or injustice in the actions taken by the Army in his case.  By regulation, the Board considers a case based on the evidence of record and independent evidence it is provided.  The Board is not an investigative body and the burden of proving an error or injustice rests with the applicant.  In this case, the applicant's request that additional information be obtained from his San Juan VA Medical Center is not viable.

5.  In view of the foregoing, his requests should be denied.

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 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)                                         AR20110013823



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ABCMR Record of Proceedings (cont)                                         AR20110013823



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