IN THE CASE OF:	  

		BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20110021754 


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 he was discharged from the military without a physical evaluation board (PEB).  His physical profile, dated 10 June 2005, states, "does not meet retention standards," and recommended a PEB.  His original discharge Orders 05-286-00056 did not include the "medical disqualification" and were amended by Orders 11-243-00032.  He understood that his original discharge orders were to include the entry "medical disqualification" but later learned that he was not recognized as having a medical disability for Department of Veterans Affairs (VA) medical services.  He was discharged from military service with the following medical conditions:

* obstructive sleep apnea
* cervical spine canal stenosis
* neck pain
* headaches
* anxiety disorder

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 August 2003
* DD Form 689 (Individual Sick Slip), dated 16 July 2003
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 1 August 2003
* Standard Form 600 (Health Record – Chronological Record of Medical Care), dated 5 August 2003
* magnetic resonance image (MRI) of the cervical spine final report, dated 14 January 2005
* back of DA Form 7349 (Initial Medical Review – Annual Medical Certificate), dated 18 May 2005
* 81st Regional Support Command Office of the Surgeon Medical Processing Checklist, dated 18 May 2005
* DA Form 3349 (Physical Profile), dated 10 June 2005
* notification of medical unfitness for retention and acknowledgement memoranda, dated 20 July 2005
* USAR discharge and amendment orders
* letter from the Physical Disability Board of Review (PDBR), dated 11 October 2011
* DD Form 294 (Application for a Review by the PDBR of the Rating Award Accompanying a Medical Separation from the Armed Forces of the United States), dated 3 November 2011, with enclosures

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 was appointed in the USAR Medical Corps, area of concentration 61H (Family Physician), as a captain on 1 August 2000 with 8 years and 6 months of constructive service credit.  He was promoted to major on 30 April 2002.

3.  He was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 9 May 2003.

4.  A DD Form 689, dated 16 July 2003, shows he received treatment for headaches and was returned to duty.

5.  A DA Form 2173, dated 1 August 2003, shows he was treated as an out-patient for sleep apnea on 28 May 2003.  This form indicates the applicant experienced fatigue on a daily basis while he was deployed and he was diagnosed with sleep apnea.  The diagnoses were determined to have been incurred in the line of duty (LOD).

6.  A Standard Form 600, dated 5 August 2003, shows he received treatment for mixed migraine and tension headaches and sleep apnea.

7.  On 25 August 2003, he was honorably released from active duty by reason of completion of required active service.

8.  An MRI final report, dated 13 January 2005, revealed that he had mild spondylosis with mild spinal canal stenosis and neural foramina narrowing at several levels.

9.  The back of a DA Form 7349, dated 18 May 2005, shows a physical evaluation determined the applicant required further evaluation for sleep apnea and spinal stenosis and that further information was needed.  The applicant was determined unfit in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 9-13 and 9-14.  He was assigned a physical profile of 331111.

10.  An 81st Regional Support Command Medical Processing Checklist, dated 18 May 2005, shows he was not physically cleared for deployment.

11.  On 10 June 2005, he was issued a permanent physical profile of 331112 for headaches, sleep apnea not on continuous positive airway pressure 3, neck pain, and anxiety disorder.  The form noted that he did not meet retention standards in accordance with Army Regulation 40-501, chapter 3, and needed a medical evaluation board (MEB)/PEB.

12.  Headquarters, 81st Regional Readiness Command, memorandum, dated 20 July 2005, subject:  Notification of Medical Unfitness for Retention, advised the applicant that:

	a.  As a result of his physical examination, he had been determined to be medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501, chapter 3.  He was required to complete the enclosed endorsement indicating his option regarding his medical disqualification.
	b.  Soldiers with permanent 3 and 4 profiles were transferred to the Individual Readiness Division until their actions have been adjudicated.

13.  He was offered the following options:

* reassignment to the Retired Reserve (20-year letter)
* reassignment to the Retired Reserve with early retirement (15-year letter)
* honorable discharge
* informal PEB to review his medical records for a final determination of medical unfitness for retention

14.  He acknowledged receipt of the notice and requested to be discharged from the USAR with an honorable discharge.

15.  On 29 October 2005, he was honorably discharged from the USAR in the rank of major under the provisions of Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers).

16.  Orders 11-243-00032 were published on 31 August 2011 amending his discharge orders by adding the entry, "Officer elected separation under Army Regulation 135-175 Medical Disqualification – Not Result of Own Misconduct."

17.  All of the applicant's medical records were not available to the Board for review.  The available record does not show he was referred to an MEB/PEB for consideration of headaches, sleep apnea, neck pain, and anxiety disorder.

18.  In a letter in response to his DD Form 294, dated 11 October 2011, the PDBR advised him that:

	a.  The PDBR was statutorily empowered by Title 10, U.S. Code, section 1554a, to reassess the accuracy and fairness of the combined disability rating assigned to service members who were discharged subsequent 11 September 2001 as unfit for continued military service by the Military Department with a combined rating of 20 percent or less and were not found to be eligible for retirement.

	b.  A review of his paperwork revealed that he was not separated through a PEB; rather, he was medically disqualified from his branch of service.  Accordingly, his application to the PDBR cannot be processed as he was not deemed to be a covered individual.  While his application could not be processed by the PDBR, he could submit an application to the ABCMR.

19.  Army Regulation 135-175 prescribes the policies for the separation of Reserve officers.  Paragraph 4-4a(1) states members will be removed from an active status when found to be medically unfit to perform active duty.

20.  Army Regulation 40-501 provides guidance for medical fitness standards for retention.  Paragraph 3-41e specifies miscellaneous conditions and defects not mentioned elsewhere in chapter 3 were causes for referral to an MEB of the conditions resulting in interference with satisfactory performance of duty; or the individual's health or well-being would be compromised if he/she were to remain in the military service; or in view of the Soldier's condition, his/her retention in the military service would prejudice the best interests of the government.

21.  Army Regulation 40-501, chapter 9, states that Reserve Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve, if applicable, or discharged per Army Regulation 135-175 or 135-178 (Enlisted Administrative Separations).  Paragraph 9-12a states Reserve Soldiers are eligible to request referral to a PEB for a determination of fitness.  MEB's are not required and cases are not sent through the PEB liaison officers at the military treatment facilities.  Paragraph 9-13 states Reserve Soldiers who request discharge may not be transferred to or kept in the Standby Reserve for more than 1 year.  Paragraph 9-14 pertains to annual dental examinations.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 
3-13a states that general and Medical Corps officers will not be found to be unfit by reason of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and experience.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was issued a permanent physical profile of 331112 on 10 June 2005 for headaches, sleep apnea, neck pain, and anxiety disorder.  It was determined that he did not meet retention standards in accordance with Army Regulation 40-501, paragraph 3-41e, and a PEB was recommended.

2.  On 20 July 2005, he was advised that his medical conditions disqualified him for retention in the USAR.  He was provided with a notice of his medical disqualification for retention and options.  He elected to be honorably discharged. 
There is no evidence he requested an informal and, if applicable, a formal PEB as was his right to do so.
3.  There appears to be no error or injustice in his separation from the USAR.  His contentions and the documents he submitted do not demonstrate error or injustice in the disposition of his case.  He has provided insufficient evidence to show he had conditions that were improperly not considered.  There is also an absence of medical documentation to support his contention that he should have received a medical discharge.  Paragraph 3-13a of Army Regulation 635-40 states that Medical Corps officers will not be found unit by reason of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and experience.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20110021754



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ABCMR Record of Proceedings (cont)                                         AR20110021754



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