IN THE CASE OF:	  

		BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110020216 


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 that her discharge for completion of required service at her retention control point be changed to a medical retirement with a 30 percent disability rating.

2.  She states the Department of Veterans Affairs (VA) awarded her a disability rating of 60 percent and recouped the total amount of her severance pay.  She states, in effect, that she should have had a medical evaluation board (MEB)/ physical evaluation board (PEB) resulting in a medical retirement instead of her expiration term of service for reaching her retention control point. 

3.  She provides:

* a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* numerous medical documents 
* a VA award letter

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.  Her military records show she enlisted in the Regular Army on 27 July 1982.  She was awarded the military occupational specialty of 71L (Administrative Specialist).  The highest rank/grade she held was sergeant/E-5.

3.  The medical records provided by the applicant show numerous medical consultations and treatment for a variety of medical conditions during and after her active duty service.  These include concussive and other injuries as the result of a motor vehicle accident in 1995.

4.  Her DD Form 214 shows she was honorably discharged from active duty, on 16 August 1997, for completion of required service.  She completed 15 years and 20 days of creditable active service.

5.  Headquarters, III Corps and Fort Hood, Orders 127-0250, dated 7 May 1997, show her discharge orders were amended to show she enlisted and was assigned to a U.S. Army Reserve troop program unit.

6.  A DD Form 4 (Enlistment or Reenlistment Agreement) contained in her records shows that, on 17 July 1997, she enlisted in the U.S. Army Reserve for a period of 3 years.  An Army Reserve Personnel Center Form 249-E (Chronological Statement of Retirement Points) shows she last performed duty in September 1999.

7.  She provided a copy of a VA rating decision, dated 13 July 1998.  This document shows she was assigned a 50 percent disability rating for post-concussive headaches due to head trauma, a 10 percent disabling rating for a tender scar on her right forehead, and a 10 percent disabling rating for a disfiguring scar on the forehead.  The overall or combined evaluation was 60 percent.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 4 of this regulation provides for separation upon expiration of enlistment or fulfillment of service obligation.

9.  Army Regulation 601-280 (Army Retention Program), in effect at the time, stated that an Active Army Soldier may not exceed the retention control points by more than 29 days before expiration of contracted service (reenlistment or extension).  The retention control point in effect at the time for a sergeant/E-5 was 13 years of active service and for a sergeant (promotable) it was 15 years of service.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and DOD Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

11.  Army Regulation 635-40 further provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military occupational specialty with the medically-disqualifying condition.

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  Her DD Form 214 shows she was discharged from active duty for completion of required service after completing 15 years and 20 days of creditable active service.  Her DD Form 214 shows her last rank held as sergeant/E-5.  Item 18 (Remarks) of this form shows she was given $31,163.40 in severance pay.

2.  While she contends she should have received a medical retirement rated at 30 percent disability she does not indicate what medical condition is the basis for her contention.  However, even if she did indicate such a medical condition, there is no evidence in the numerous medical related documents she provided that shows she had an unfitting diagnosis that would have required an MEB.

3.  Orders 127-0250 show her discharge orders were amended to show she enlisted and was assigned to a U.S. Army Reserve TPU.  A DD Form 4 shows that, on 17 July 1997, she enlisted in the U.S. Army Reserve for a period of 3 years.  An Army Reserve Personnel Center Form 249-E (Chronological Statement of Retirement Points) shows she last performed duty in September 1999.  This indicates that she was not medically unfit to perform her duties in 1997 

4.  She was not authorized to remain on active duty due to reaching the retention control point for her rank/grade.  However, based on her enlistment in the U.S. Army Reserve it is presumed that competent medical personnel determined she was medically fit for further military service.  As such, she has not provided sufficiently convincing evidence or argument to form a basis to change a properly administered discharge due to completion of required service to that of a medical retirement at a 30 percent disability rating.

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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)                                         AR20110020216



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ABCMR Record of Proceedings (cont)                                         AR20110020216



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