IN THE CASE OF:	  

		BOARD DATE:	  2 October 2012 

		DOCKET NUMBER:  AR20120001152 


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 his records be corrected to show he was medically retired or granted severance pay based on physical disabilities incurred or aggravated while entitled to basic pay.  He further requests correction of administrative data on his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show his rank as sergeant (SGT), show he has 15 years of service, not show he was receiving unemployment compensation, and not show bipolar limits wear of field gear.

2.  He states his separation for medical disqualification by the U.S. Army Reserve (USAR) should be corrected to reflect a compensable unfitting in line of duty (ILOD) due to service-connected disability from active duty to include Bosnia.  He had medical conditions which were not considered by the PEB.  Only certain medical records were submitted to the USAR PEB and military occupational specialty medical review board (MMRB), therefore, the boards did not have the complete mental health and medical records to know he had service-connected disabilities while on active duty.  He requested to appear at a formal hearing but was never given the chance to communicate and prove his case.  The PEB was given misleading information from his command when they made their final decision.  He should have been out-processed as ILOD on the active duty side instead of the USAR. 

3.  He provides:

* email, subject: [Applicant's] Medical Condition - (No Action Required at this Time)
* 9501st Training Detachment memorandum, subject: Commander Statement
* DA Form 3349 (Physical Profile)
* DA Form 199
* Headquarters, 90th Regional Readiness Command Orders 06-023-00033
* USAR Personnel Command, memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter)
* Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* VA Rating Decision and other VA medical related documents
* numerous military medical documents  

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.  His military records show after 4 years of prior active service he enlisted in the Regular Army on 16 February 1995 for a period of 4 years.  On 5 June 1998, he reenlisted for a period of 2 years.

3.  A Standard Form 600 (Chronological Record of Medical Care) contains an entry, dated 10 November 1997, indicating the applicant stated he had been having severe mood swings, that he was on medication 10 years prior and decided to stop taking it, and he had been seen by a psychiatrist before with the last time being 5 years prior.  The report indicated the applicant expressed chronic/family history as opposed to relating present problems.

4.  A Standard Form 513 (Consultation Sheet), dated 10 November 1997, shows he was seen for depression.  The consultation report indicated his clinical presentation was most consistent with a borderline personality disorder [PD], however, given a family history of psychiatric illness dysthymic disorder [D.O.] may also have been combined. 

5.  A Standard Form 93 (Report of Medical History), dated 25 February 2000, shows he indicated he had been previously treated for chronic depression. 

6.  He was discharged from active duty on 4 June 2000 due to completion of required service after completing 5 years, 3 months, 19 days of active duty during that period.  He enlisted into a USAR unit effective the next day.

7.  On 17 January 2003 he entered active duty from the USAR in support of Operation Enduring Freedom.  He was released from active duty and returned to a USAR unit effective 21 October 2003 after completing 9 months and 5 days of active duty.

8.  A DA Form 3349, dated 30 September 2004, lists his profile related medical conditions as carpal tunnel syndrome, chronic shin splints, and bipolar disorder.  The form indicates he was on multiple medications for bipolar disorder and that he did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-32b and c (mood disorders, persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment and resulting in interference with effective military performance), and 5-14 (medical fitness standards for deployment and certain geographical areas).  He was recommended for separation.

9.  Orders 05-042-00001 promoted him to sergeant/E-5, effective 11 February 2005. 

10.  On 24 June 2005, he elected, due to his medical disqualification, to request a not in line of duty (NILOD) PEB and transfer to the Retired Reserve.  He acknowledged he had been counseled regarding his options upon being found medically unfit for retention.

11.  A 9501st Training Detachment memorandum, dated 24 June 2005, from his commander to the president of the PEB stated the applicant was an exceptional Soldier.  He stated the applicant's MMRB packet went forward for carpal tunnel syndrome, chronic shin splints, and bipolar disorder.

12.  A Request for Fit for Duty Evaluation (FFDE), dated 1 August 2005, was submitted to determine whether processing for a Medical Evaluation Board (MEB) was warranted.  The request stated the applicant was diagnosed with carpal tunnel syndrome, shin splints, and bipolar disorder.  Shin splints were a reoccurring event in which the applicant was temporarily out of commission for an indefinite time waiting the pain to go away.  This document shows his rank as specialist.

13.  Page 1 of his informal PEB that convened on 19 September 2005 shows the PEB found him unfit.  The disability description column stated the applicant was no longer able to work and was receiving unemployment compensation.  It further showed he had a physical profile for chronic shin splints and bipolar disorder limiting the wear of field gear and that he did not have 15 years of service at the time of the PEB.

   a.  The case was adjudicated as a non-duty related case under the provisions of Department of Defense (DOD) Directive 1332.18, paragraph 3.5 (page 3) and DOD Instruction 1332.38, Part II, paragraph E3.P2.3 (page 27).  The disability descriptions listed were not ratable.
   
   b.  The PEB found the applicant to be physically unfit and that his disposition was referred for case disposition under RC regulations.
   
   c.  Page 2 of the DA Form 199 is unavailable for review for verification of whether the applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing in his case or requested a formal hearing.
   
14.  On 28 September 2005, he requested transfer to the Retired Reserve in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

15.  A statement from the applicant to the president of the PEB, dated 10 October 2005, indicated he was given the opportunity to make the PEB aware of certain medical records that were not conclusively available to the PEB for a proper decision on his behalf.  Enclosed were some medical records, DD Forms 214, active duty orders, doctor's diagnosis, limitations, and treatments for the conditions of bipolar disorder, chronic shin splints, and carpal tunnel syndrome (for which he was under workman's compensation benefits).

16.  By memorandum he was notified that he was scheduled to appear for a formal hearing before the PEB on 25 October 2005.  The memorandum stated that during the proceedings he would have the opportunity to present his case orally or in writing and to examine and cross-examine any witnesses.   The advisory opinion indicated he then waived the scheduled formal hearing.

17.  On 23 January 2006, Headquarters, 90th Regional Readiness Command Orders 06-023-00033 directed the applicant's assignment to the Retired Reserve effective 22 February 2006 by reason of being medically disqualified, not as a result of own misconduct.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) was the authority cited.  These orders show he was authorized early retirement under Title 10, U.S. Code, Section 12731b and his rank as SGT/E5.

18.  USAR Personnel Command Memorandum, dated 26 January 2006, subject: Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-year Letter) states, in pertinent part, that his eligibility was determined based on not being eligible for retention in the Selected Reserve and having at least 15 years of qualifying service.  This memorandum shows his rank as SGT/E5.

19.  An ARPC Form 249-E shows he had 15 years and 2 days of qualifying service for retirement at age 60 as of 23 February 2006.

20.  A VA compensation award letter, dated 30 April 2008, shows effective 27 June 2006, he was assigned a 100 percent disability rating for bipolar disorder and a 0 percent disability rating for left and right leg shin splints.

21.  In the processing of this case, on 15 May 2012, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official states the applicant requests that his separation for medical disqualification by the USAR be corrected to reflect a compensable unfitting ILOD.
	
	a.  He states in 2005 the applicant's USAR unit notified him that he was being considered for separation due to NILOD conditions that resulted in him being not medically qualified for continuation in the USAR.  The applicant was authorized to rebut his unit's action regarding his proposed medical disqualification and the unit's determination that his conditions were not considered ILOD.  There is no evidence within the present case file that the applicant ever contested the unit's processing of the case as a non-duty related case.  The applicant was also provided the right to request that the USAPDA review his referred conditions to ascertain if they were unfitting or not.  Such referral to the USAPDA would be for a fitness determination only as the unit had referred the case as a non-duty related case.  As such, the USAPDA had no authority to determine compensability or to reverse any unit decisions regarding whether the disqualifying medical conditions were service caused or related per USAPDA Policy Memorandum Number 4, 8 April 2002.

	b.  The applicant did request that the USAPDA review his conditions to determine fitness for duty.  On 19 September 2005, an informal PEB found the applicant was unfit to perform his duties.  On 11 October 2005, the applicant non-concurred and requested a formal hearing.  On 19 October 2005, the applicant changed his mind and waived his right to a formal hearing and the case was returned to his unit for whatever action they deemed appropriate.  The USAR released the applicant from the military on 23 February 2006 because they determined that he was medically disqualified.

	c.  In 2008 the VA found that the applicant's bipolar psychiatric condition was service connected in accordance with their criteria and awarded him compensation.  Based on that finding, the applicant now requests that his military records be corrected to reflect the same findings as the VA.

	d.  There is no error regarding the USAPDA's findings.  The USAPDA was only authorized to review the applicant's case file in regard to his fitness for duty; not whether the condition should be considered ILOD or compensable.  Should the applicant wish to have his unfitting conditions considered to have been ILOD such action would have to be reviewed and addressed by the USAR.  If such review results in the recommended changing of the USAR's prior determination that the case was a non-duty related one, then a reconstructed MEB would have to be ordered and accomplished.  The MEB would have to reflect the approximate mental condition of the applicant in 2005 with a determination of any limitations of his level of industrial functionality to ensure that any military disability rating would be as correct as possible when he was separated in February 2006.

22.  The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

23.  Army Regulation 40-501, chapter 3, provides standards for medical retention.  Paragraph 9-12 states RC Soldiers with non-duty related medical conditions pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  The process was designed to give the Soldier with a non-duty related impairment the option of requesting a PEB solely for the purpose of fitness determination but not a determination of eligibility for disability benefits.  Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required.

24.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61, and DOD Directive 1332.18.  Under the laws governing the PDES, 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.

   a.  Chapter 4 contains guidance on processing through the Army PDES, which includes the convening of a MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

   b.  Chapter 8 contains the rules and policies for disability processing of RC Soldiers on active duty or on inactive duty for training.  It states, in part, that an RC Soldier will be referred for medical processing through the Army PDES when a commander or other proper authority believes that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.

25.  Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  It states assignment to the Retired Reserve is authorized for Soldiers who request transfer and 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. 

26.  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 rated at least 30 percent.  Title 10, U.S. Code, 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.

27.  Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty.  However, the disability must have been the proximate result of performing military duty.  It further provides for 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.
28.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  

   a.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  

   b.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

29.  Army Regulation 600-8-4 (LOD Policies, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  It provides standards and considerations used in determining LOD status.  It states that LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. 

30.  DOD Directive 1332.18, paragraph 3-5 states that any member of the Ready Reserve who is pending separation for a non-duty related impairment or condition shall be afforded the opportunity to enter the Disability Evaluation System (DES) for a determination of fitness.  If determined fit, the Secretary concerned may deem the member medically qualified for retention in the Ready Reserve in the specialty for which he or she was found fit.

31.  DOD Instruction 1332.28, Part II, paragraph E3.P2.3 states that members of the Ready Reserve with non-duty related impairments, and who are otherwise eligible, will be referred into the DES upon the request of the member or when directed under Service regulations.  Referral will be solely for a determination of fitness for duty.

DISCUSSION AND CONCLUSIONS:

1.  He contends he should have received a disability rating from the military for service-connected disabilities incurred or aggravated while on active duty.  Though he does not indicate what disabilities those are, the VA granted him service-connection for bipolar disorder and shin splints.  The VA assigned a zero percentage rating to his shin splints.  His military medical records show that during one doctor's visit he admitted to being seen by a psychiatrist before November 1997 with the last time being 5 years prior.  He also stated he had been on medication 10 years prior to that date and decided to just stop taking it.  The applicant further expressed a chronic/family history as opposed to relating present problems.  This indicates these conditions were not incurred or aggravated while entitled to basic pay.

2.  His records show he was evaluated by an FFDE to determine whether he should be considered by an MEB.  It was determined that he had non-duty related medical conditions.  He was counseled on his options upon his notification of his medical disqualification.  He elected to request an NILOD PEB and transfer to the Retired Reserve.

3.  His later contention that the PEB was flawed and that he should have received a disability percentage for service-connected disabilities incurred or aggravated while on active duty was noted.  Again, the history of his bipolar disorder indicates the condition was not incurred or aggravated while entitled to basic pay.  Likewise, there is insufficient evidence to show his chronic shin splints were incurred or aggravated while entitled to basic pay.  However, only unfitting conditions incurred while entitled to basic pay are considered in the PDES.  The PEB reviewed his case as a non-duty related condition (as determined by the USAR) and the PEB could only determine whether he was fit or unfit for retention.  Therefore, the PEB could not assign a disability percentage (compensation) or line of duty status in his case. 

4.  He also contends he was not given a formal hearing to explain his situation.  However, the PDA advisory opinion stated he first accepted and then declined a formal hearing.  He has not provided evidence to support his contention the command did not provide all of his pertinent medical documentation.  Even if he had, the applicant was given an opportunity to be evaluated, he declined a formal hearing, and he elected transfer to the Retired Reserve with a non-regular retirement. 

5.  There is no indication his medical condition was the proximate result of performing military duty or that it was further aggravated by active duty.  He was properly afforded the option of discharge or transfer to the Retired Reserve based on being medically disqualified from further service in the active Reserve.  The applicant's discharge from his USAR unit and subsequent transfer to the Retired Reserve appears to have been administered correctly with no indication of any violations of his rights.

6.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  

7.  Furthermore, the VA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  While the VA may have determined under its rules that he was service connected for bipolar disorder and shin splints that does not indicate the USAR was in error by determining his bipolar disorder and shin splints were non-duty related.

8.  He has not shown he had medical conditions that were incurred or aggravated while on active duty that warranted an MEB.  There is an insufficient basis to overturn the USAR NILOD determination.  As such, he is not entitled to either a medical retirement or disability severance pay. 

9.  He requests correction of specified administrative data (rank, years of service, unemployment compensation status, and physical profile statement related to wear of field gear) on his DA Form 199.

	a.  He was promoted to SGT/E-5 effective 11 February 2005.  Although some documents dated after this date show his rank as specialist/E-4, his 15-year letter and the orders transferring him to the Retired Reserve show his rank as 
SGT/E-5.  As such, it appears his rank was SGT/E-5 at the time the PEB convened and therefore it would be appropriate to amend his DA Form 199 to show his rank as SGT/E-5.

	b.  While the lack of punctuation in the physical profile related statement may cause some awkwardness in reading, it is not in error since his profile did limit the wear of field gear.  He has not provided sufficient evidence to support his contention that he had 15 years of service or that he was not receiving unemployment compensation at the time of the PEB.  As such, there is an insufficient basis for which to correct this portion of the administrative data.
	
10.  In view of the foregoing, the applicant is entitled to have his records corrected as shown below. 


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DA Form 199 to show his rank as SGT/E-5.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting:

* his DD Form 214 to show he was medically retired or discharged for physical disability with severance pay
* the administrative data on his DA Form 199 to show he had 15 years of service, not show he was receiving unemployment compensation, and the physical profile statement related to wear of field gear




      _______ _   _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)                                         AR20120001152



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ABCMR Record of Proceedings (cont)                                         AR20120001152



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