IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110013883 


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 correction of her military records to show she was retired due to physical disability.

2.  The applicant states her discharge should have been through a medical evaluation board (MEB) for a military retirement rather than a normal discharge.  She contends that she incurred a service-connected shoulder disability on 
22 May 2002; service-connected second degree burns on 10 April 2004; and disabling panic attacks on 13 May 2004.

3.  The applicant provides copies of the following documents:

* Statement of Medical Examination and Duty Status, dated 22 May 2002
* DD Form 689 (Individual Sick Slip), dated 18 April 2004
* DA Form 3918 (Facsimile Transmittal Header Sheet), dated 11 May 2004
* DA Form 3349 (Physical Profile), dated 13 May 2004
* Order 079850 and Annex A (Personnel Main Body), 81st Regional Readiness Command, dated 7 May 2004
* DA Form 7425 (Readiness and Deployment Checklist), dated 13 May 2004
* Orders 04-141-00603, U.S. Army Reserve Command, dated 20 May 2004
* Information sheet from the Department of Veterans Affairs (VA) concerning Chapter 3 VA Pensions
* Letter from the Community Health Center, Johnson City, TN, dated
29 September 2010
* VA Form 21-0845 (Authorization to Disclose Personal Information to a Third Party), dated 24 June 2011

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.  On 12 April 2001, the applicant enlisted in the U.S. Army Reserve (USAR).  She completed her initial active duty training and was awarded a military occupational specialty.

3.  The evidence provided by the applicant shows:

	a.  On 22 May 2002, she incurred an injury that was determined to be in the line of duty, resulting in a temporary disability due to the onset of pain in her right neck and shoulder.

	b.  DD Form 689, dated 18 April 2004, indicates she received second degree burns which were determined to be in the line of duty.

	c.  DA Form 3349, dated 13 May 2004, indicates a permanent physical profile and need for an MEB/PEB due to illness/disease (panic attacks).  A note refers to a non-duty physical disability board (PEB).  The form is signed by the examining physician, but does not show approval/disapproval by the approving authority.

	d.  DA Form 7425, dated 13 May 2004, indicated that she was a "NO GO" for readiness and deployment due to readiness certification, medical, and dental.




4.  Orders 06-040-00055, 81st Regional Readiness Command, dated 9 February 2006:

	a.  Paragraph 1 reduced the applicant from specialist, pay grade E-4 to private, pay grade E-1; and

	b.  Paragraph 2 discharged the applicant from the USAR effective the same date, under the authority of Army Regulation 135-178.  She was given an under other than honorable conditions characterization of service.  

5.  The applicant's service medical records are not available for review.

6.  The applicant's discharge packet is not available for review.

7.  Army Regulation 135-178 (Enlisted Administrative Separations), establishes the policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.

8.  Army Regulation 15-185 (ABCMR) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

9.  Army Regulation 635-40 (Personnel Separations Physical Evaluation for Retention, Retirement, or Separation) precludes physical disability processing or continuing disability processing of an enlisted member who is being processed for administrative separation under any regulatory provision which authorizes separation under other than honorable conditions.  The only exceptions are when the officer exercising general court-martial jurisdiction (who may not delegate this authority) finds that the disability was the cause or a substantial contributing cause of the pertinent misconduct or that other circumstances warrant disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her military records should be corrected to show she was retired due to physical disability because she incurred a service-connected shoulder disability on 22 May 2002, service-connected second degree burns on 10 April 2004, and disabling panic attacks on 13 May 2004.




2.  The available evidence:

	a.  shows the applicant was examined in 2004 and recommended for an MEB/PEB.  While, the recommendation was signed by the examining physician, it does not show approval/disapproval by the approving authority;

	b.  does not contain any documents showing continuing medical problems during 2005; and

	c.  shows that in February 2006, the applicant was reduced in rank and administratively discharged;

3.  The available records do not contain any evidence of the misconduct that led to the applicant's administrative discharge.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support her contention that her discharge was unjust.

4.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with her overall record.

5.  Furthermore, the applicant's administrative separation for misconduct would have most likely precluded any physical disability processing.

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)                                         AR20110013883



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013883



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1