IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110015498 


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, physical disability retirement.

2.  The applicant states:

* she was discharged from the Army National Guard (ARNG)
* she was told that the time she served was not enough because 2 years went by without her being properly credited
* she retired because of several medical and mental issues
* she had to write to her Senator to get him involved with her case because they wanted her to do 2 more years past her 20 years of service

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 3288 (Request and Consent to Release of Information from Individual's Records), dated 10 April 1011
* VA Rating Decision, dated 17 June 2010
* VA Form 10-2577F (Security Prescription Form), dated 5 May 2003
* Self-authored memorandum for The Adjutant General's Office of South Carolina, dated 10 August 2006
* Laboratory Reports
* DA Form 3349 (Physical Profile), dated 8 April 2005
* 
South Carolina Medical Command letter, dated 19 September 2004
* Letter from the Office of The Adjutant General, dated 9 December 2005
* Certificate of Non-Eligibility for South Carolina Army National Guard (SCARNG) Retirement Pension, dated 22 August 2006
* Permanent Orders 230-003, issued by the State of South Carolina Military Department, Office of The Adjutant General, dated 18 August 2006
* Orders 227-811, issued by the same headquarters, dated 15 August 2006
* Orders 258-083, issued by the same headquarters, dated 15 September 2006
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 14 July 2006

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.  With 5 years, 7 months, and 7 days of prior active service in the Regular Army, the applicant enlisted in the SCARNG on 21 June 1991.  She remained in the SCARNG through extensions and reenlistments.

3.  A DA Form 268 (Report to Suspend Favorable Personnel Action (FLAG)) was initiated against her on 14 May 2005 for Army Physical Fitness Test (APFT) failure.  The FLAG was removed on 1 July 2005 when she passed the APFT.

4.  On 8 September 2005, the applicant was placed on a permanent physical profile prohibiting her from participating in the 2-mile run and sit-ups events.  However, she was prescribed an APFT consisting of a 2 1/2 mile walk and the push-ups event.

5.  Although the Military Medical Review Board (MMRB) summary of the board proceedings are not contained in the applicant's official military personnel file, the 

record does contain a notice to her, dated 9 December 2005, from the Office of The Adjutant General.  She was told by the Deputy Chief of Staff that the MMRB evaluated her ability to perform the physical requirements of her military occupational specialty.  She was told that, premised on a thorough review of her health record and all other pertinent records, the MMRB determined she was fully fit for retention, deployment, and assignment.  She was told her records would be reviewed again in 1 year at which time she must provide results of a current work-up from her physician regarding her diabetes.

6.  On 26 June 2006, the State of South Carolina Office of The Adjutant General directed the applicant's commander to initiate separation action on her as premised in the recommendation by the MMRB conducted on 23 June 2006.  She acknowledged receipt of the notification indicating that she understood she was being medically discharged/retired from the SCARNG as a result of the MMRB.  She indicated she agreed with the results and she chose not to waive her rights.

7.  On 14 July 2006, the applicant was honorably discharged from the ARNG and transferred to the Retired Reserve.  Her NGB Form 22 shows she was discharged under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), due to being medically unfit for retention and she was transferred to the Retired Reserve.  She had 19 years of creditable service for retired pay purposes.

8.  On 10 August 2006, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter).  She was told her eligibility was determined based on the following qualifications:

* she was in the Selected Reserve
* she had completed at least 15 years of qualifying service beginning on or after 1 October 1991
* she had not completed 20 or more years of qualifying service
* she had completed at least the last 6 years of qualifying service while a member of a Reserve component
* she requested transfer to the Retired Reserve

9.  Permanent Orders 230-003, dated 18 August 2006, released her from her SCARNG assignment and placed her on the State Retired List, effective 15 July 2006.

10.  On 22 August 2006, the applicant was issued a Certificate of Non-Eligibility for SCARNG Retirement Pension.  She was told she would not be eligible to 

receive an SCARNG State Pension because she did not meet the criteria of
Title 9, Chapter 10, Section 30 of the South Carolina Code.  She was told she did not serve at least 15 years of creditable service in the SCARNG.  The certificate shows she had:

* 19 creditable years of military service (must be at least 20)
* 13 creditable years of SCARNG service (must be at least 15)
* 13 creditable years of SCARNG service immediately prior to discharge or separation (must be at least 10)

11.  Orders 258-083, dated 15 September 2006, honorably discharged her from the ARNG and assigning her to the Retired Reserve, effective 14 July 2006.

12.  The applicant submits a VA Rating Decision, dated 17 June 2010, showing she was awarded an 80 percent (%) disability rating percentage for service-connected medical conditions.  She also submits laboratory reports dated
12 April 2005 and 25 October 2005.

13.  Army Regulation 600-60 (Physical Performance Evaluation System (PPES)) implements and establishes operating procedures for the PPES.  The purpose of the PPES is to maintain the quality of the force by ensuring that Soldiers are physically qualified to perform their primary military occupational specialty (PMOS) or specialty code worldwide and under field conditions.  The MMRB does not determine if a Soldier is fit or unfit for duty.  MMRB recommendations to the MMRB Convening Authority, and the MMRB Convening Authority decision, are limited to one of the following actions:

* retain Soldier in PMOS or branch/specialty code
* recommend reclassification
* place in probationary status
* refer for medical evaluation board/physical evaluation board (MEB/PEB) or the Reserve component medical disqualification process

14.  The same regulation states that because a written transcript of oral testimony is not required, the summary of board proceedings is the single most important document produced by the MMRB.  When a Soldier is retained in PMOS or specialty, the summary and decision are filed permanently in the Soldier’s OMPF.  If a Soldier is recommended for reclassification, change in specialty, or referral to the Physical Disability Evaluation System (PDES), a detailed summary provides invaluable information necessary for the Army to make a final decision concerning the Soldier.  As a minimum the summary must include the following:

* a detailed explanation of the board’s rationale for its recommendation
* when recommending reclassification, change in specialty, or referral to the PDES, the circumstances or evidence that documents how the Soldier’s medical condition has prevented performance in PMOS or specialty
* concurrence or nonconcurrence with the commander’s or supervisor’s evaluation of the Soldier’s ability to perform and the reason

15.  National Guard Regulation 600-200, paragraph 8-26, governs discharge from the State Army National Guard and/or as a Reserve of the Army.  Subparagraph 8-26j(1) states Soldiers are discharged from the State ARNG or from the Reserve of the Army when a Soldier is determined to be medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501 and National Guard Regulation 40-501 (Standards of Medical Fitness-Army National Guard).

DISCUSSION AND CONCLUSIONS:

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

2.  The MMRB summary of board proceedings are not on file.  Therefore, it cannot be determined exactly what is stated therein.  

3.  In accordance with the applicable regulation, Soldiers are discharged from the State ARNG or from the Reserve of the Army when they are determined to be medically unfit for retention per Army Regulation 40-501, chapter 3.

4.  The applicant was discharged from the ARNG and she was transferred to The Retired Reserve.  The Selected Reserve 15-Year Letter she received shows she requested to be transferred to the Retired Reserve.  She is eligible to receive retired pay at age 60.

5.  She has not shown that the type of discharge she received is incorrect or unjust.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting her 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)                                         AR20110015498



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ABCMR Record of Proceedings (cont)                                         AR20110015498



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