IN THE CASE OF:	  

		BOARD DATE:  12 June 2012

		DOCKET NUMBER:  AR20110023396 


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 disability retirement.  

2.  The applicant states she was improperly denied the opportunity to be evaluated through the Army Physical Disability Evaluation System (PDES) based on being within a year of retirement.  

3.  The applicant provides the 8 enclosures listed in the attachment list included with her application in support of her request.  

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.  On 22 June 2000, the applicant was notified that she had completed the necessary qualifying service and was eligible to receive retired pay upon reaching age 60 upon application.  

3.  On 3 October 2004, while serving as a member of the U.S. Army Reserve (USAR), Army Nurse Corps, in the rank of colonel, the applicant was ordered to active duty in support of Operation Iraqi Freedom.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 January 2007, shows the applicant was treated for neck pain and received physical therapy while in a medical hold status.  The applicant reported that she fell off a bus while wearing all of her issued equipment and she was receiving pain medication while in Iraq.  She further stated she received physical therapy and traction at Fort Bliss, Texas, and that a C-spine film showed degenerative disc and joint disease.  

5.  She served on active duty 2 years, 4 months, and 6 days until being honorably released from active duty 8 February 2007and returned to her USAR unit.

6.  On 15 October 2007, the applicant voluntarily transferred to the USAR Control Group (Reinforcement), Individual Ready Reserve.  

7.  A DA Form 3349 (Physical Profile), dated 4 May 2009, shows the applicant was assigned a permanent (P) 333111 profile, which lists a P3 in the areas of physical, upper extremities and lower extremities.  The DA Form 3349 shows the applicant remained eligible to complete the alternate Army Physical Fitness Test (APFT).   

8.  On 28 January 2010, the USAR Command Surgeon completed a DD Form 3349 that indicated the applicant was assigned a "P" physical profile of 333122 with 3's in the physical, upper extremities, and lower extremities, and that she did not meet medical fitness standards.  

9.  On 2 February 2010, the office of the USAR Command Surgeon forwarded the applicant a copy of the 28 January 2010 DD Form 3349.

10.  On 4 May 2010, the Chief, Patient Administration, U.S. Army Human Resources Command, St. Louis, Missouri, informed the applicant that by regulation a Soldier will not be referred to the PDES when they are being processed for separation or retirement within 12 months.  

11.  On 31 May 2010, the applicant was transferred to the Retired Reserve due to reaching maximum age.

12.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards which includes medical fitness standards for retention and separation, including retirement.  Paragraph 9-10 contains guidance on disposition of unfit Reservists.  It states, in pertinent part, that normally Reservists who do not meet fitness standards will be transferred to the Retired Reserve if eligible.  Any PDES processing is for fitness determinations only.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or
Separation) establishes the Army PDES according to the provisions of Title 10, U.S. Code (USC), Chapter 61, (10 USC 61) and Department of Defense 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.  

14.  Paragraph 3-2 of the PDES regulation outlines specific presumptions for separation or retirement from active service.  It states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for disability retirement has been carefully considered.  However, after reviewing all of the evidence provided by the applicant, there is insufficient evidence to support her claim.  

2.  By law and regulation, when a Reservist is unfit he/she will be transferred to the Retired Reserve if eligible and when a Soldier is being processed for separation or retirement for reasons other than physical disability continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  

3.  The evidence of record confirms the applicant was within 12 months of mandatory transfer to the Retired Reserve based on maximum age requirements when it was determined she did not meet medical fitness standards.  As a result, there was a presumption of fitness attached to her continued performance of duty in the USAR subsequent to the end of her active duty service on 8 February 2007.  

4.  There is an insufficient evidentiary basis to support granting the 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)                                         AR20110023396



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ABCMR Record of Proceedings (cont)                                         AR20110023396



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