IN THE CASE OF:	  

		BOARD DATE:  27 November 2012

		DOCKET NUMBER:  AR20120009342 


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:

	a.  removal of all documents from her Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), related and/or referring to her involuntary separation from the U.S. Army Reserve (USAR) and reinstatement in the USAR retroactive to 1 October 2006;

	b.  evaluation of her medical condition by a Medical Evaluation Board (MEB); and

	c.  incapacitation pay and allowances for the period 20 August 2003 through the date of completion of her physical disability evaluation and separation from the USAR.

2.  The applicant states that after her mobilization with the 4003rd Garrison Support Unit (during the period 17 January through 19 August 2003), she was never fit for duty again.

	a.  She was involuntarily separated from the USAR on 1 October 2006 with an under other than honorable conditions discharge without being simultaneously processed for administrative separation and physical disability evaluation.

	b.  She was undergoing medical treatment at the time and she was separated without benefit of proper treatment and evaluation of her medical condition.  She 


was denied the opportunity to submit documentation of her medical condition and to have a disability rating assigned.  Therefore, the USAR violated Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

3.  The applicant provides copies of 13 documents relating to her military service and medical condition that include incapacitation pay documents, a line of duty investigation (LODI), active duty orders, separation documents, a physical profile, and medical records, all of which are specifically identified on the list of evidence to her application as Exhibits B through N.

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 had prior Reserve commissioned officer service in the USAR and Army National Guard from 3 August 1989 through 1 April 1999.  She held area of concentration 88A (Transportation, General).

3.  She transferred to the USAR on 2 April 1999.  She was promoted to the rank/grade of major (MAJ)/O-4 on 19 June 2002.

4.  Orders M-013-0265, issued by the 90th Regional Support Group, San Antonio, TX, dated 13 January 2003, ordered the applicant to active duty in support of Operation Enduring Freedom on 17 January 2003.  She was a member of the 4003rd USAR Garrison Support Unit, Norman, OK.  She was further ordered to report to Fort Hood, TX on 21 January 2003

5.  Orders 223-0227, issued by Headquarters, III Corps, Fort Hood, dated
11 August 2003, released the applicant from active duty on 19 August 2003 and transferred her back to her USAR unit.  The additional instructions show the applicant was eligible for Transitional Health Care under Title 10, U.S. Code, section 1145, until 18 October 2003.
6.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably released from active duty on 19 August 2003 based on completion of required active service and transferred to the 4003rd USAR Garrison.  She completed 7 months and 3 days of net active service this period.

7.  On 3 December 2005, a Show-Cause Board was convened under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) to determine if the applicant had committed multiple acts of misconduct.

	a.  The applicant's commander testified he met the applicant the day after he took command of the unit and they briefly discussed her entitlement to incapacitation pay.

		(1)  He stated when the applicant was assigned to his command she had already accumulated 12 notices of unsatisfactory participation from her previous unit.  He saw her at one unit Battle Assembly in 2003 and he had not seen her again until the day he attempted to serve her the notice of board proceedings.

		(2)  He noted the applicant was ordered to perform annual training on
18 April 2004, at which time she was to speak with the 15-6 investigating officer regarding her case; however, she failed to report for duty.

		(3)  He added that, in response to the applicant's complaint regarding her incapacitation pay, he responded to a Member of Congress (MOC).  He informed the MOC that the applicant was under suspension of favorable personnel actions because she was under investigation due to unsatisfactory performance.

	b.  The board proceedings show the applicant was personally notified of the board by a major who put the notification in her hands, but she refused to sign for the notification.  The applicant's commander also attempted to serve the notice of separation on the applicant at her workplace; however, she slammed the door in his face.

	c.  The applicant's commander testified the applicant was ambulatory on the two occasions he saw her and he was unaware of any personal or physical disability that would have precluded her from attending unit Battle Assemblies.

8.  Headquarters, 7th Army Reserve Command, USAR Center, Unit 29238, Orders 06-290-00003, dated 17 October 2006, discharged the applicant from the USAR under other than honorable conditions, effective 1 October 2006, under the provisions of Army Regulation 135-175 (Separation of Officers). 

9.  The applicant's request that her involuntary separation be voided and that she be reinstated in the USAR, effective 1 October 2006, was considered by the ABCMR in Docket Number AR20090009692 on 10 December 2009 and her request was denied.  On 7 April 2011, the ABCMR reconsidered her request in Docket Number AR20100019380 and it was again denied.

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

	a.  a handwritten letter, dated 7 August 2003, that shows Lieutenant Colonel Joseph A. S---- III, Chief, Training, stated "(the applicant) has been diagnosed with acute overuse syndrome and she cannot perform her assigned military duty as training officer due to her present conditions";

	b.  an informal LODI that shows on 7 August 2003, her injury of carpal tunnel in both hands was evaluated.  (The attached medical record also shows she complained of pain in her knee for one week while running.)

		(1)  The attending physician noted she complained of bilateral wrist pain and hand weakness for 2 to 3 months (since 30 May 2003), and that the injury may result in temporary disability.

		(2)  The commander determined the injury was incurred in the line of duty and a formal LODI was not required.  The LODI was approved on 13 August 2003;

	c.  a memorandum, dated 14 August 2003, that shows she certified she was injured in the line of duty on 30 May 2003, she could not perform normal military and civilian duties satisfactorily, and her claim was substantiated by a letter from her supervisor and an approved LODI;

	d.  USARC Form 46-1-R (Soldier's Acknowledgement of Incapacitation Pay Counseling), dated 18 August 2003, that shows she acknowledged her understanding of, and agreement with, the requirements for requesting incapacitation pay;

	e.  USARC Form 46-2 (Military Physician's Statement of Soldier's Incapacitation/Fitness for Duty) that shows the examining physician certified she was not fit to perform military duties from 4 September 2003 to 4 March 2004;

	f.  DD Form 689 (Individual Sick Slip), dated 4 September 2003, that shows she delivered incapacitation documents to the military treatment facility (MTF) for a military physician to complete.

	g.  memorandum from her to her commander, dated 26 January 2004, requesting incapacitation pay and allowances from 4 March through
4 September 2004 due to carpal tunnel syndrome, bilateral, and stating that she was (then) unemployed without income from any source;

	h.  Medical Consult Result that shows the applicant was evaluated at the Physical Therapy Clinic, U.S. Army Military Hospital, Hanau, Germany, on 7 July 2004, for right knee pain that began during her deployment at Fort Hood, TX;

	i.  DA Form 3349 (Physical Profile) that shows, on 7 July 2004, she was issued a 30-day temporary profile due to bilateral knee pain, osteoarthritis; and

	j.  Chronological Record of Medical Care, dated 1 September 2004, that shows she was seen for carpal tunnel syndrome.

11.  Department of the Army Pamphlet 135-381 (Incapacitation of Reserve Component Soldiers Processing Procedures) provides that when a Soldier has incurred or aggravated an injury, illness, or disease during active duty or inactive duty training that renders the Soldier unable to perform military duties and/or demonstrates a loss in nonmilitary earned income, he/she is responsible for initiating an incapacitation pay claim.  The incapacitated Soldier will:

	a.  promptly notify his/her first line leader and unit commander of the injury, illness, or disease;

	b.  comply with medical treatment and follow all instructions provided by medical personnel and all guidance given during the Soldier briefing;

	c.  apply for reimbursement, if travel to an authorized MTF was in excess of 50 miles or 90 minutes; and

	d.  complete and submit a DA Form 7574 (Incapacitation Pay Monthly Claim) for each calendar month claimed, including an accurate disclosure of income from nonmilitary earned income.

12.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAGS)) provides that the suspension of favorable personnel actions is mandatory when an investigation (formal or informal) is initiated on a Soldier by military or civilian authorities.

13.  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.  Chapter 3 (Policies) provides policy and outlines the standards for determining unfitness because of physical disability.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirement of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank or, rating.  For an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his/her office, grade, rank or rating.  Separation by reason of disability requires processing through the PDES.

	b.  Chapter 4 (Procedures), paragraph 4-4 (Commissioned or warrant officers who may be separated under other than honorable conditions), provides that a commissioned or warrant officer will not be referred for disability processing instead of elimination action (administrative separation) that could result in separation under other than honorable conditions.  Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation.

		(1)  Commanders exercising general court-martial authority will ensure that the foregoing actions processed together are properly identified and cross-referenced.  The administrative separation will be forwarded to Commander,
U.S. Army Human Resources Command.

		(2)  The Commander, HRC, will refer the entire file, including both courses of action, to the Office of the Secretary of the Army, ATTN: SAMR–RB, 
Washington DC  20310–3073, for necessary review.  The Secretary of the Army will decide the proper disposition of the case.

	c.  Chapter 8 (Reserve Components) provides rules for processing through the disability system Soldiers of the Reserve Component who are on active duty for a period of less than 30 days (emphasis added) or inactive duty for training.

14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30%.  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%.

15.  Army Regulation 600-8-104 (Army Military Human Resources Records) provides policies, operating tasks, and steps governing the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of six sections:  performance, service, restricted, medical, other, or State/Territory.

16.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

	a.  Chapter 7 (Appeals and Petitions) sets forth the policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.

	b.  Paragraph 7-2 (Policies and standards) provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her military records should be corrected by removing all documents from her AMHRR related/referring to her involuntary separation 
from the USAR, reinstatement in the USAR retroactive to 1 October 2006, payment of incapacitation pay and allowances for the period 20 August 2003 through the date of completion of her physical disability evaluation and separation from the USAR, and a medical discharge or retirement based on physical disability.

2.  The evidence of record shows the applicant was diagnosed with carpal tunnel syndrome, bilateral on 30 May 2003.

	a.  On 7 August 2003, the Chief, Training, indicated the applicant could not perform her assigned duty as training officer due to her condition.  

	b.  On 14 August 2003, the applicant submitted a request for incapacitation pay.  However, based on the evidence of record, her request did not contain the required documentation (i.e., physician's statement, DA Form 7574, or disclosure of income from nonmilitary earned income).
	c.  The applicant was released from active duty on 19 August 2003.

	d.  On 4 September 2003, a military physician documented that the applicant was unfit to perform military duties from 4 September 2003 to 4 March 2004.  However, the evidence of record fails to show the applicant provided the documentation to her commander for consideration of her request.

	e.  On 26 January 2004, the applicant submitted a request for incapacitation pay from 4 March through 4 September 2004.  Based on the evidence of record, her request did not contain the required documentation (i.e., a physician's statement or DA Form 7574).

	f.  The evidence of record shows the applicant was not attending unit Battle Assemblies during this period of time and there is no evidence she was excused from attending the unit Battle Assemblies.

	g.  More importantly, the evidence of record shows the applicant's commander testified he served the notice of separation on the applicant at her workplace (emphasis added), the applicant was ambulatory on the two occasions he saw her, and he was unaware of any personal or physical disability that would have precluded her from attending unit Battle Assemblies.

	h.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis to support the applicant's claim that she submitted a proper claim for incapacitation pay or that she is entitled to incapacitation pay retroactive to
20 August 2003 through the date of her separation.

3.  The evidence of record shows that under the laws governing the Army PDES, in order to be eligible to receive retirement and severance pay benefits, physically unfitting disabilities must meet certain LOD criteria.

	a.  There is no evidence the applicant's condition was the proximate (direct) cause of performing active duty or inactive duty training.  

	b.  In fact, the evidence of record shows the period of time the examining physician certified the applicant was not fit to perform military duties was from
4 September 2003 to 4 March 2004.  The evidence of record also shows the applicant was administratively separated from the USAR more than 2 1/2 years after the period that a physician documented the applicant was unable to perform military duties.  Since there are no other medical records showing she was unfit to perform her military duties, it is reasonable to conclude that the applicant's condition had improved.  Had she attended battle assemblies as she was required to do, the true nature of her medical condition could have been determined.  Therefore, she was not entitled to physical disability evaluation processing because there is no evidence she had an unfitting condition at the time of her administrative separation processing.

	c.  Therefore, the applicant's contention that her military records should be corrected to show she was reinstated in the USAR on 1 October 2006, simultaneously processed for administrative separation and physical disability evaluation, and medically discharged or retired due to physical disability based on the recommendations and findings of MEB proceedings is without merit.

4.  The applicant's discharge from the USAR on 1 October 2006 under other than honorable conditions was administratively correct.  In the absence of evidence to the contrary, all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  The evidence of record shows that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.  
The applicant has failed to provide such evidence with respect to her involuntary separation action and the related separation documents.

6.  In view of all of the foregoing, there is no 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 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)                                         AR20120009342



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ABCMR Record of Proceedings (cont)                                         AR20120009342



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