IN THE CASE OF:	  

		BOARD DATE:  12 July 2012

		DOCKET NUMBER:  AR20110021029 


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, a medical retirement.

2.  The applicant states she was forced to retire because of her service-connected disability.  She has been granted individual unemployability and she has not been employed for the past 13 years.  She was also granted a Reserve retiree identification card after being deemed unemployable and no longer able to attend Reserve training assemblies.  She is medically disabled and she should be entitled to medical retirement benefits.  She is aware that retirement benefits are for those who served for 20 qualifying years; however, she completed 5 years of active duty and 2 years of Reserve service and she did not know she was eligible for these benefits.

3.  The applicant further states she would also like to be eligible for the Concurrent Retirement and Disability Payments (CRDP) program.  Her first physician’s visit was within 90 days of completing her Regular Army commitment.

4.  The applicant provides a copy of her annual training orders.

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 enlisted in the Regular Army on 27 January 1994.  She completed training and she was awarded military occupational specialty (MOS) 71L (administrative specialist).

3.  In a 22 February 1995 memorandum, her commander indicated the applicant had been informed that an MOS/Medical Retention Board (MMRB) would evaluate  her ability to perform in her primary MOS of 71L.  He stated her profile did not prohibit her from performing any of her primary MOS duties in any way, and she was a great asset to the section where she worked.  The results of this MMRB are not available, but apparently it was determined she could perform her duties and would retain her MOS.

4.  On 14 May 1998, the applicant was counseled that she had incurred a service-remaining requirement as a result of reassignment instructions to Germany, and that in order to comply with the commitment she must extend or reenlist to January 2002.  She signed a declination of continued service statement, indicating she refused to take action to comply with the commitment.

5.  She was honorably released from active duty on 26 March 1999 by reason of completion of required active service and she was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete her remaining Reserve obligation.

6.  It appears she was assigned to a USAR troop program unit after her release from active duty.  She provides a copy of orders ordering her to annual training with her troop program unit for 13 days with a reporting date of 1 May 2000.

7.  Her service medical records are not available for review with this case.  

8.  On 24 January 2001, orders were issued transferring her to the Retired Reserve effective 1 June 2000.  The records do not indicate the reason.

9.  In October 2011, the applicant applied for Combat-Related Special Compensation (CRSC).  She indicated her disabilities as sinusitis, rhinitis, and reactive airway disease.  She also indicated her disabilities were incurred in 1995.  Her request was denied because she was not in a retired status.

10.  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.

11.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent (%).  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30%.

12.  Title 38, U.S. Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

13.  CRSC, as established by Title 10, U.S. Code, section 1413a, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it were not for the statutory prohibition for a military retiree to receive a VA disability pension.  Eligible members are retirees who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disabling.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.
14.  The Fiscal Year 2004 National Defense Authorization Act provided for phased-in restoration of the retired pay deducted from the accounts of military retirees because of their receipt of VA compensation.  CRDP applies to all retirees with VA-rated, service-connected disability of 50 percent or higher but does not apply to disability retirees with less than 20 years of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant entered active duty on 27 January 1994 and she was honorably released from active duty upon completion of her enlistment commitment on 26 March 1999 because she declined to extend or reenlist to complete an overseas tour.  There is no evidence in the available records and she did not provide any evidence that shows she was diagnosed with a medical condition that rendered her physically unfit or unable to perform the duties required by her grade or military specialty, or would have warranted her entry into the Army's PDES at the time of her release from active duty.  The Army's PDES is dependent on the existence and severity of a condition at the time of separation.

2.  The applicant was transferred to the Retired Reserve effective June 2000.  Although the reason for the transfer, when she had less than 7 years of service, is not known it is acknowledged that it could have been because she was found medically unfit for retention.  It is also acknowledged that she could have been found medically unfit for retention due to her allergies.

3.  However, the applicant indicated in her request for CRSC that her disabilities, presumably due to her allergies, were incurred n 1995, only about a year after her enlistment.  In the absence of her medical records, at this late date it cannot be determined if her allergies were a condition that existed prior to service.  Unless it is determined that an unfitting condition was incurred while entitled to basic pay, a medical separation would not be authorized.

4.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

5.  The CRSC criteria are specifically for those military retirees who have combat-related disabilities.  The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.  The applicant’s allergies would not appear to fit into any of these categories even if she were determined to have been eligible for a medical retirement.

6.  CRDP applies to all retirees with VA-rated, service-connected disability of 50 percent or higher but does not apply to disability retirees with less than 20 years of service.  With less than 7 years of service, the applicant would not meet these criteria even if she were determined to have been eligible for a medical retirement.

7.  Regrettably, there is insufficient evidence on which to base granting the relief requested.

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)                                         AR20110021029



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ABCMR Record of Proceedings (cont)                                         AR20110021029



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