IN THE CASE OF:	  

		BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20110023911 


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 correction of his military records to show he was medically discharged or retired due to physical disability.

2.  The applicant states he was determined to be physically unfit for retention. However, his records do not contain a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) or a DA Form 199 (Physical Evaluation Board (PEB) Proceedings).

3.  The applicant provides copies of an MEB memorandum and evaluation, notification of medical unfitness for retention, orders reassigning him to the Retired Reserve, and two letters from his physicians.

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 as a reserve commissioned officer in the U.S. Army Reserve (USAR), Veterinary Corps, on 1 November 1979.  He continued to serve in the USAR and was promoted to the rank of lieutenant colonel on 20 June 1991.

3.  The applicant was mobilized in support of Operation Joint Endeavor/Guard in September 1997.  He was found non-deployable, demobilized, and returned to his Reserve unit.

4.  A DD Form 261 (Report of Investigation (ROI) - Line of Duty (LOD) and Misconduct Status) shows that while the applicant was at his mobilization station, it was determined he was not deployable because he did not have a current license to practice as a veterinarian.

	a.  Shortly thereafter, the applicant began having chest pains, depression, difficulty sleeping, and loss of appetite.  After a thorough medical work-up, it was determined that his symptoms were due to anxiety.  He was diagnosed with a "phase of life problem, anxiety disorder, adjustment disorder with depression."  

	b.  The two medical opinions indicated that the applicant suffered from a condition that was brought about by his failure to be deployed due to lack of a current license.

	c.  The investigating officer (IO) found that the applicant's actions contributed to his condition, not because he failed to maintain his license to practice veterinary medicine as required by the Army regulation (simple negligence), but because he lied to his commanding officer on two occasions regarding the status of his license.

	d.  The IO concluded that the applicant's statements indicated he was aware of the requirement to maintain his license, but he willfully failed to do so.  Thus, his statements to his commanding officer constituted intentional misconduct. Therefore, the IO rendered a finding of "Not in Line of Duty - Due to Own Misconduct."

	e.  The IO referred the ROI to the applicant, along with all supporting documents.  The applicant submitted matters in his behalf for consideration.

	f.  The IO advised the applicant that his recommendation would stand.

	g.  The appropriate authority approved the IO's recommendation and found the applicant's condition was "Not in Line of Duty - Due to Own Misconduct."

5.  422nd Medical Detachment (Veterinary Service), Maus-Warfield USAR Center, Rockville, Maryland, memorandum, dated 9 March 2000, notified the applicant that, as a result of his medical examination, it was determined he was medically disqualified for continued service in the USAR.  (The medical condition was not specified in the memorandum.)  He was advised he could request:

* reassignment to the Retired Reserve
* reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60, if he had at least 15 but less than 20 years of qualifying service for retired pay
* honorable discharge from the USAR
* review of his non-duty related medical disqualification by a PEB

6.  422nd Medical Detachment (Veterinary Service), Maus-Warfield USAR Center, Rockville, Maryland, memorandum (undated), shows:

	a.  the applicant placed his initials in the space indicating, "I 'JCD' request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60.  I have at least 15 but less than 20 years of qualifying service for retired pay purposes"; and

	b.  the applicant signed the document.

7.  Headquarters, 99th Regional Support Command, Oakdale, Pennsylvania, Orders 01-128-020, dated 8 May 2001, reassigned the applicant to the Retired Reserve, effective 15 April 2000.  The authority was Army Regulation 140-10 (Assignments, Attachments, Transfers, Details, and Transfers) based on medical disqualification for retention.

8.  U.S. Army Human Resources Command (USA HRC), Fort Knox, Kentucky, memorandum, dated 6 January 2011, subject:  Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter), notified the applicant of his eligibility for retired pay at age 60.  The letter also shows the applicant requested transfer to the Retired Reserve.

9.  USA HRC, St. Louis, Missouri, Orders P04-943303, dated 1 April 2011, placed the applicant on the Retired List effective 17 November 2007.

10.  In support of his application, the applicant provides the following documents:

	a.  PEB Liaison Office, Walter Reed Army Medical Center, Washington, DC, memorandum, dated 11 June 1998, that shows the applicant's commander was notified that the applicant was pending an MEB/PEB and the commander was required to provide a statement concerning the applicant's performance of duty;
any special limitations of duty; and his ability to adequately perform the duties normally expected of an individual of the applicant's office, grade, rank, or rating.
(A copy of the commander's statement was not provided.)

	b.  an evaluation for MEB, dated 22 December 1999, that shows:

		(1)  the applicant was evaluated for:

* Insulin-dependent diabetes mellitus (10-year history)
* Grave's Disease, status post radioactive iodine ablation
* Adjustment Disorder with anxiety and depressed mood
* Hypertension
* Hyperlipidemia
* Degenerative Joint Disease, bilateral, hips
* Trochanteric Bursitis
* Tinnitus and right-sided hearing loss - slight

		(2)  the physician's recommendations were:

		(a)  refer the applicant for MEB for the condition of Insulin-dependent diabetes mellitus;

		(b)  the conditions of Grave's disease, hypertension, hyperlipidemia, degenerative joint disease, bilateral trochanteric bursitis, and tinnitus with right-sided hearing loss (mild) all met the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness); and

		(c)  the condition of Adjustment Disorder with anxiety and depressed mood did not exist and should be stricken from the applicant's medical records.

	c.  ECU Physicians, Smart Medicine, Greenville, NC, letter, dated 19 June 2011, that shows the applicant has been a patient of Dr. A____ B. M____ since 2007 and that he has diabetes, hypertension, hyperlipidemia, hypothyroidism, and severe hip arthritis status post recent hip replacement.  The doctor also provides a summary of the applicant's military medical records that she reviewed (dated 25, 26, 29, and 30 September 1997) and she notes the applicant was evaluated for chest pain, high blood sugar, and anxiety.

	d.  Physicians East PA-Endocrinology, Greenville, NC, letter, dated 20 July 2011, that shows the applicant was being treated by Dr. R____ D____ for poorly controlled type 2 diabetes, requiring insulin and hypothyroidism.  The doctor also provides a summary of the applicant's military medical records that he reviewed (dated 26 September 1997) and he notes the applicant had hypertension and diabetes, as well as chest pain.

11.  A review of the applicant's military personnel records failed to reveal a copy of any MEB or PEB proceedings.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and 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.

	a.  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.  Separation by reason of disability requires processing through the PDES.

	b.  Chapter 3 (Policies), paragraph 3–4 (LOD decisions), provides that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LOD criteria to be eligible to receive retirement and severance pay benefits.

		(1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training (IDT).

		(2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

	c.  Chapter 8 (Reserve Components (RC)), paragraph 8-1 (Overview), provides the rules for processing through the disability system Soldiers of the RC who are on active duty for a period of less than 30 days or on IDT.

		(1)  Paragraph 8-3 (Proximate result) shows that in order for Soldiers of the RC to be compensated for disabilities incurred while performing duty for
30 days or less, to include IDT, there must be a determination by the PEB that the unfitting condition was the proximate result of performing duty.

		(2)  This determination is different from an LOD determination which establishes whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a causal relationship between the disability and the required military duty.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30 percent.  Section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.

14.  Army Regulation 140-10, chapter 6, provides policy and procedures on the transfer to and from the Retired Reserve.  Paragraph 6-1 (Eligibility) shows that assignment to the Retired Reserve is authorized, and an eligible Soldier must request transfer, if they (in part):

	a.  are entitled to receive retired pay from the U.S. Armed Forces because of prior military service;

	b.  have completed a total of 20 years of active or inactive service in the U.S. Armed Forces;

	c.  are medically disqualified for active duty resulting from a service-connected disability; or

	d.  are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was medically discharged or retired due to physical disability based on the recommendations and findings of MEB/PEB proceedings.

2.  Records show the applicant was evaluated for an MEB in 1999.  In part, the physician's recommendation was that the applicant's condition of Adjustment Disorder with anxiety and depressed mood did not exist and should be stricken from the applicant's medical records.  However, the physician recommended the applicant should be referred to an MEB for the condition of Insulin-dependent diabetes mellitus.  However, there is no evidence to show this condition was incurred while he was entitled to basic pay.

3.  On 9 March 2000, the applicant was notified that, as a result of his medical examination, it was determined he was medically disqualified for continued service in the USAR.  He was also advised of his options, which included having his non-duty related medical disqualification reviewed by a PEB.

4.  The applicant did not request review of his non-duty related medical disqualification by a PEB.  Instead, he requested reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 based on having at least 15 (but less than 20) years of qualifying service for retired pay.  Accordingly, the applicant was reassigned to the Retired Reserve, effective 15 April 2000.

5.  Thus, in view of the foregoing, the applicant's contention that his military records should be corrected to show he was medically discharged or retired due to physical disability based on the recommendations and findings of MEB/PEB proceedings is without merit.

6.  Therefore, there is no basis for 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 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)                                         AR20110023911



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ABCMR Record of Proceedings (cont)                                         AR20110023911



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