IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110017880 


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 award of a medical discharge from the U.S, Army Reserve (USAR).

2.  The applicant states that he should have received a medical discharge in lieu of an honorable discharge.  He did not meet the medical qualification for retention in the USAR in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-12c(1).  He was misguided by his chain of command and was advised to request an honorable discharge in lieu of requesting a Physical Evaluation Board (PEB) or a Medical Evaluation Board (MEB).

3.  He also states that he was advised by the 394th Combat Sustainment Support Battalion that his bonus was not going to be recouped.  However, he incurred a debt with the Defense Finance and Accounting Service (DFAS) which was turned over to the Department of Treasury Offset Program and reported to the credit bureau.  He filed a congressional which led to the establishment of monthly payments.

4.  He provides:

* Standard Forms (SF) 600 (Medical Record – Chronological Record of Medical Care), dated 2 June, 13 October, and 4 November 2004
* Demobilization Physical Processing memorandum, dated 15 November 2004

* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 January 2005
* Fremont Area Medical Center Form PS 12-05, dated 18 January 2005
* Line of Duty (LOD) Determination Memorandum, dated 29 September 2005
* Consent for Surgery, Administration of Anesthetics and/or Diagnostic/Therapeutic Procedures, dated 14 April 2008
* DA Form 7349 (Initial Medical Review – Annual Medical Certificate), dated 15 May 2008
* SF 507 (Functional Capacity Certificate), dated 16 May 2008
* Notification of Medical Disqualification memorandum, dated 26 June 2008
* DA Form 3349 (Physical Profile), dated 12 July 2008
* DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 7 August 2008
* USAR discharge orders, dated 19 August 2008
* Department of Veterans Affairs (VA) Rating Decision, dated 30 January 2009
* VA Progress Notes, dated between April 2008 and January 2009
* VA Civil Service Preference Certificate, dated 25 June 2010

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’s military record shows he enlisted in the USAR on 29 October 2001.  He was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 15 December 2003.

3.  An SF 600 shows he received treatment for:

* a common cold on 13 October 2004
* Costochondritis (Tietze’s Syndrome (benign inflammation of one or more of the costal cartilages)) and nicotine dependence on 7 November 2004
4.  A Demobilization Physical Processing memorandum, dated 15 November 2004, shows he was hospitalized while on active duty for chest pain on 7 November 2004.

5.  On 7 December 2004, he was honorably released from active duty due to completion of required active service and transferred to a Reserve unit.

6.  A DA Form 2173, dated 13 January 2005, shows he was treated as an out-patient for kidney stones on 13 January 2005.  He was placed on bed rest for
5 days.

7.  An LOD determination memorandum, dated 29 September 2005, shows an LOD investigation determined that his duty status at the time of his 13 January 2005 injury was in the LOD.

8.  On 9 April 2008, he underwent an exercise treadmill test for cardiac disease.

9.  A DA Form 7349, dated 15 May 2008, shows he listed that he:

* had a neck and lower back injury
* a torn rotator cuff
* was seeing a chiropractor for an injury to his neck and back
* had his gallbladder removed and he had 3 kidney stones

10.  An SF 507, dated 16 May 2008, shows he was found to have permanent limitations for bilateral knee ligament weakness and chronic back strain.

11.  A Memorandum, subject:  Notification of Medical Disqualification, dated 26 June 2008, advised the applicant that his medical records revealed one or more medical conditions that disqualified him for retention in the USAR.  The memorandum also advised him of the following options for disposition of his case:

* elect to be transferred to the Retired Reserve if otherwise eligible for retirement based on qualifying years of service
* elect to be discharged from the USAR with an Honorable Discharge Certificate
* elect to be considered by a Non-Duty Related-PEB (NDR-PEB)

12.  The above memorandum further advised the applicant that if he elected to be consideration by an NDR-PEB, the NDR-PEB preview was limited to a fitness determination and it could not award disability compensation.  
13.  On 30 June 2008, he elected to be discharged from the USAR with an honorable discharge.

14.  On 12 July 2008, he was given a permanent physical profile with a PULHES profile of 133121 for chronic back, neck, and knee pain.  It was determined that he did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-39b and 3-13c(1), and a MEB or PEB was not needed.

15.  On 7 August 2008, he completed a DA Form 4651 requesting a medical discharge.

16.  On 19 September 2008, he was honorably discharged from the USAR, in pay grade E-5, under the provisions of Army Regulation 135-178 (Army National Guard and USAR Enlisted Administrative Separations).

17.  His medical records were not made available to the Board.  The available record does not show he was referred to an MEB or NDR-PEB for consideration of chronic back, neck, and knee pain or that an LOD determination was made for these conditions during his period of active service.  

18.  On 30 January 2009, the VA awarded him the following:

* 10 percent (%) service-connection for nephrolithiasis
* 10 % service-connection for tinnitus
*   0 % service-connection for Costochondritis (Tietze’s Syndrome)

19.  The VA denied him service-connection for right and left knee musculoligamentous strain, gastroesophageal reflux disease, gall bladder removal, and hearing loss.  He also provided copies of multiple VA medical progress notes dated between 2008 and 2009 with a rating decision related to his medical conditions.

20.  His Chronological Statement of Retirement Points, dated 29 September 2011, credited him with 5 years, 10 months, and 21 days of qualifying years for retirement.

21.  Army Regulation 135-178 prescribes the policies for the separation of enlisted Soldiers from the Reserve Components.  Chapter 12 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness.

22.  Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in LOD), specifies a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability, for the purpose of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 years and less than 20 years of service. 

23.  Army Regulation 40-501, chapter 3, provides that, for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  

24.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  

25.  Title 37, U.S. Code, section 373(a) states a member of the uniformed services who is paid a bonus, incentive pay, or similar benefit, the receipt of which is contingent upon the member's satisfaction of certain service or eligibility requirements, shall repay to the United States any unearned portion of the bonus, incentive pay, or similar benefit if the member fails to satisfy any such service or eligibility requirement, and the member may not receive any unpaid amounts of the bonus, incentive pay, or similar benefit after the member fails to satisfy such service or eligibility requirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted; however, the evidence of record shows, on 26 June 2008, he was advised that his chronic back, neck, and knee pain disqualified him for retention in the USAR under the provisions of Army Regulation 40-501, paragraphs 3-39b and 3-13c(1).  

2.  At that time, he had the option of choosing to be transferred to the Retired Reserve if he qualified, to be discharged, or undergo an NDR-PEB.  He elected to be discharged without an NDR-PEB and was discharged from the USAR on 19 September 2008.  He chose not to undergo a fitness evaluation and he has provided insufficient evidence to show he met the criteria to undergo MEB/PEB proceedings.  
3.  He has provided insufficient evidence to show that he had conditions that were improperly not considered.  There is also an absence of medical documentation to support his statement that he should have received a medical discharge.  

4.  In the absence of sufficient evidence to the contrary, it is presumed that he was properly separated from the USAR.  His contentions and the documents that he submitted do not demonstrate an error or injustice in his narrative reason for separation, nor an error, or injustice in the disposition of his case.  

5.  It is concluded he did not meet the eligibility requirements for completion of a 15-year retirement due to medical unfitness.  Therefore, he was properly separated from the USAR in accordance with regulatory guidance and he is not entitled to a medical disability retirement.

6.  The VA documentation he provided with his application was also carefully considered; however, the conditions that failed to meet retention standards are not considered service-connected by the VA.  The conditions rated by the VA are not disqualifying.  The award of a VA rating does not establish entitlement to a referral for disability processing.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, he was properly evaluated and he is being compensated for his service-connected medical conditions by the VA.  

7.  With respect to recoupment of his bonus, there is no evidence in his record and he did not provide any substantiating evidence that shows the DFAS debt and the recoupment action were in error or any evidence that his debt should be remitted or canceled.  He acknowledged the debt and established monthly payments.  Therefore, there is an insufficient evidentiary basis to support remission or cancellation of his debt.

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)                                         AR20110017880



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ABCMR Record of Proceedings (cont)                                         AR20110017880



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