IN THE CASE OF:	  

		BOARD DATE:	    3 January 2013

		DOCKET NUMBER:  AR20120009764 


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, in effect, reinstatement in the U.S. Army Reserve (USAR) and referral to a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) based on an injury that existed prior to service and determined to be in the line of duty.

2.  The applicant states he was not given the opportunity to be processed through the Physical Disability Evaluation System (PDES) for the purpose of establishing the proper basis for his separation.

	a.  He states he had a pre-existing medical condition prior to entering military service.  The condition is known as Cervicalgia (neck pain) that is due to a fusion of the C-4/C-5 vertebrae and causes intermittent pain.

	b.  During his over 15 years of military service the injury worsened.  Several line of duty investigations were conducted and his injury was determined to be in the line of duty.

	c.  On 14 November 2002, he was issued a temporary "3" profile (upper extremities) for an acute neck injury and declared medically disqualified.  He was discharged on 15 April 2005 and transferred to the USAR Control Group (Retired Reserve) without referral to the PDES for evaluation by an MEB/PEB.

	d.  He resigned from Federal employment in 2005 for medical reasons.  He is now unemployed and not able to work due to intermittent pain.

3.  The applicant provides a copy of a line of duty investigation with allied documents and his separation orders.

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 enlisted in the USAR as a cadet in the Reserve Officers' Training Corps (ROTC) on 26 January 1983.

3.  He was appointed as a Reserve commissioned officer in the rank/grade of second lieutenant (2LT)/O-1 (Infantry Corps) on 12 May 1984.

4.  Four Standard Forms (SF) 88 (Report of Medical Examination) pertaining to the applicant:

* 11 June 1983 for entry in the ROTC
* 2 August 1984 for entry on active duty for training (ADT)
* 4 December 1984 for separation from ADT
* 25 February 1990 for a routine check-up

all show in:

	a.  The Clinical Evaluation section:

* item 35 (Upper Extremities) - Normal
* item 38 (Spine, Other Musculoskeletal) - Normal

	b.  the examining physician found the applicant medically qualified under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).


5.  A DD Form 2808 (Report of Medical Examination), dated 1 October 2002, 
shows in:

	a.  The Clinical Evaluation section:

* item 33 (Upper extremities) - Normal 
* item 36 (Spine, other musculoskeletal) - Normal

	b.  item 44 (Notes):  "33 - Full strength - both uppers";

	c.  item 77 (Summary of Defects and Diagnoses):  "36 - Chronic neck pain - No upper extremity motor loss"; and

	d.  item 74a (Examinee/Applicant) shows the examining physician found the applicant qualified for service.

6.  Orders 05-070-00005, issued by Headquarters, 99th Regional Readiness Command, Coraopolis, PA, dated 11 March 2005, reassigned the applicant to the USAR (Retired Reserve) effective 15 April 2005.  The orders show the reason was "Medically Disqualified - Not Result of Own Misconduct" and the authority was Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers).

7.  An ARPC Form 249-E (Chronological Statement of Retirement Points) shows the applicant served in the USAR from 12 May 1984 through 15 April 2005 and that he had 16 years of qualifying service for retirement.  It also shows he had non-qualifying years, as follows:

* 12 May 1990 through 11 May 1991 - 34 total points
* 12 May 1991 through 11 May 1992 - 28 total points
* 12 May 1995 through 11 May 1996 - 29 total points
* 12 May 2004 through 15 April 2005 - 14 total points

8.  A memorandum issued by the U.S. Army Reserve Personnel Command, St. Louis, MO, subject:  Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter)), dated 3 July 2007, shows the applicant was notified that he was eligible to apply for retired pay upon attaining age 60 under Title 10, U.S. Code, section 1273b – Physical disability not incurred in the line of duty.  It also states, "Your eligibility was determined based on the following qualifications:

	a.  You are not eligible for retention in the Selected Reserve.


	b.  You have completed at least 15 years of qualifying service.

	c.  You have completed the last 8 years of qualifying service while a member of a Reserve component.

	d.  You have requested transfer to the Retired Reserve (emphasis added).

9.  In support of his application the applicant provides:

	a.  Order Number 016319, issued by the 99th Regional Support Command, Coraopolis, PA, dated 15 January 2002, that ordered him to annual training for a period of 17 duty days effective 15 February 2002.

	b.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 June 2002, that shows the applicant was treated as an out-patient at Darnall Army Community Hospital, Fort Hood, TX, on 19 February 2002 for Cervicalgia (neck pain) that existed prior to service.  It also shows in:

* item 11 (Medical Opinion) the attending physician indicated the injury:

* is not likely to result in a claim against the government for future medical care
* was not incurred in the line of duty - "Existed prior to service condition"
* was based on "Review of SF 600 and patient interview"

* item 12 (The Following Disability May Result):  an "x" in the "Temporary" block
* item 15 (Details of Accident or History of Disease):  "Soldier on duty at this installation sustained a neck injury in 1974 [sic] and now has intermittent pain.  No recent trauma.  Treatment rendered on post/on duty, Fort Hood."  An SF 600 (Chronological Record of Medical Care), dated 19 February 2002, documents the medical treatment

		(1)  The commander indicated the injury is considered to have been incurred in the line of duty and he signed the document.

		(2)  On 14 August 2002, the Deputy Adjutant General, Headquarters,
III Corps, Fort Hood, reviewed the line of duty investigation for completeness and determined the applicant's medical condition was in the line of duty.


	c.  Medical treatment records that document the applicant's treatment, that include:

* four SF's 600, dated 12 February, 8 November, and 3 and 7 December 1984, for various medical conditions (not related to neck injury/pain)
* three SF's 558 (Emergency Care and Treatment Record), dated
17 August 1984, 11 October 1984, and 2 August 1986, for right shoulder, right knee, and right eye swelling, respectively
* an SF 519-A (Radiographic Report), dated 8 November 1984, for right knee injury

	d.  The reverse side of a DA Form 7349 (Initial Medical Review - Annual Medical Certificate), dated 8 November 2002, that shows the applicant reinjured his neck on 14 October 2002, he was hospitalized for 1 day, and he required further evaluation.  On 10 November 2002, the examining physician indicated the applicant was medically unfit.

	e.  A DA Form 3349 (Physical Profile), dated 14 November 2002, that shows the applicant was issued a temporary physical profile for an acute neck injury (Upper Extremities - "T3") and that the profile expired on 31 December 2002.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's separation, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  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.

	a.  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 (emphasis added).

		(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.
	b.  Chapter 8 (Reserve Component) outlines the rules for processing Soldiers of the Reserve Component (RC) through the PDES who are on active duty for a period of less than 30 days or on inactive duty training.  Paragraph 8- 2 provides that Soldiers of the RC eligible for processing under this paragraph are those who incur a disability from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training with or without pay, or temporary tour of active duty under a call or order that specifies a period of 30 days or less, to include full-time training duty; inactive duty training (IDT), including IDT without pay under competent orders; active duty for training; and disability from disease incurred while performing duty (a determination must be made whether the disease was the proximate result of performing duty).

11.  Army Regulation 140-10 (Assignments, Attachments, Transfers, Details, and Transfers) provides policy and procedures on the transfer to and from the Retired Reserve.  Chapter 6 (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 he or she:

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

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

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

	d.  is 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 his records should be corrected to show he was referred to an MEB/PEB for a disability rating determination due to an injury that existed prior to service and was determined to be in the line of duty because he was found medically unfit for duty in the USAR based on the medical condition.

2.  Records show the applicant was treated on 19 February 2002 for his neck pain that existed prior to service (emphasis added).  He reinjured his neck on
14 October 2002, the examining physician indicated he was medically unfit, and the applicant was issued a temporary profile through 31 December 2002.


3.  The evidence of record shows that Soldiers of the RC who incur a disability from an injury determined to be the proximate result of performing duty while in a pay status (including IDT without pay under competent orders) will be processed through the PDES.  The evidence of record shows the applicant's injury existed prior to service.  There is insufficient evidence to show he was in a pay status or IDT under competent orders that would have required referral to the PDES.

4.  Orders reassigned the applicant to the USAR (Retired Reserve) effective
15 April 2005.  The reason was "Medically Disqualified - Not Result of Own Misconduct" and the authority was Army Regulation 140-10.

5.  The evidence of record shows the governing Army regulation provides that assignment to the Retired Reserve is authorized and an eligible Soldier may request transfer if he is 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.

6.  The applicant's "20-Year" letter shows the applicant requested transfer to the Retired Reserve.

7.  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 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)                                         AR20110023388



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ABCMR Record of Proceedings (cont)                                         AR20120009764



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