BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20120013292 


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.  he be reinstated into the U.S. Army Reserve (USAR) Troop Program Unit (TPU) or Individual Ready Reserve (IRR);

   b.  that he be allowed to retire;
   
   c.  that the reason for his discharge be changed from "non-duty" to "duty related"; and
   
   d.  receipt of the Prior Service Enlistment Bonus (PSEB) promised to him at the time of his enlistment.

2.  He states:

	a.  he had a line of duty (LOD) injury at the time of a medical board in August 2011 that was overlooked.  When the LOD was presented to the responsible authority for review, he was advised the board would not review the case again;

	b.  his injury was sustained in June 2008.  For over 3 years, he continued to drill and work in his military occupational specialty (MOS) as one of the unit drivers without further medical claims;

	c.  he participated in Army Physical Fitness Tests (APFTs) with scores as high as 264, he trained in terrains not conducive to a person with his condition with no medical effects, he completed over 13 years as a Reservist, and he completed more than 20 years in the military;

	d.  he was wrongfully discharged from the USAR.  He was injured during active duty and not afforded the opportunity for medical care.  When he was discharged, he was given a discharge that read "not-duty related."  He feels it should read "duty related"; and

	e.  he was given a PSEB when he enlisted, but he needed to complete MOS school to receive it.  He was advised he was not eligible for the bonus based on a technicality that emerged after he completed school.  However, Army Retention staff insisted he was eligible and assisted him with the submission of a "memorandum to order."

3.  He provides:

* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* DA Form 3540 (Certificate and Acknowledgement, U.S. Army Reserve (USAR) - Service Requirements and Methods of Fulfillment)
* DA Form 5261-5-R (Selected Reserve Incentive Program - USAR PSEB Addendum)
* Seven memoranda
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Four orders
* DA Form 1059 (Service School Academic Evaluation Report)
* Email correspondence 
* Letter from the 63rd Regional Support Command
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DA Form 7652 (Physical Disability Evaluation System (PDES) - Commander's Performance and Functional Statement)
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)
* DA Form 3349 (Physical Profile)
* DA Form 705 (APFT Scorecard)
* ARPC Form 249-E (Chronological Statement of Retirement Points)
* Defense Finance and Accounting Service (DFAS) Form 702 (Military Leave and Earnings Statement)
* Extract from Title 37, section 308i (Pay and Allowances of the Uniformed Services)



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The American Legion, as counsel for the applicant, opined that the applicant's issues stated on his application amply or advance his contentions and substantially reflect probative facts needed for equitable review.  

CONSIDERATION OF EVIDENCE:

1.  After completing prior service in the U.S. Navy, U.S. Navy Reserve, and the Army National Guard, the applicant enlisted in the USAR on 24 September 2007 for a period 6 years for training in MOS 68G (Patient Administrative Specialist).  

2.  During his enlistment processing, he signed a Certificate and Acknowledgment - USAR Service Requirements and Methods Fulfillment.  In Section IV (Service Obligation), he indicated he was enlisting under the prior service program in MOS 68G for a PSEB in the amount of $15,000.  

3.  He also signed a Selected Reserve Incentive Program (SRIP) – USAR PSEB Addendum during his enlistment processing.  In Section V (Entitlement) of the addendum, he verified he was enlisting for 6 years and a bonus in the amount of $15,000.  The addendum states an initial payment of 50 percent (%) would be paid upon award of the MOS and based on his 6-year enlistment payments of 25% of the total bonus would be paid at the end of his 2nd and 4th year of satisfactory service in a USAR Selected Reserve Unit.  Section III, paragraph 5,  of the addendum states, “I am in receipt of an honorable discharge issued on separation from prior military service.”  Section VII of the addendum states, in part, that his entitlement to the PSEB will be terminated if he is separated from his enlisted status, or from a USAR Selected Reserve unit, for any reason, except when separated from an authorized period of nonavailability.  

4.  He was ordered to active duty for training (ADT) on 10 May 2008.  

5.  On 2 July 2008, a DA Form 2173 was initiated based on an injury he sustained on 10 June 2008.  The DA Form 2173 asserts he was diagnosed with a shoulder joint disorder.  This form stated he injured his right shoulder while participating in combat drills during level one combatives training.  The company commander rendered a presumptive determination that the applicant's injury was incurred in LOD.  However, no formal LOD was completed.

6.  On 30 June 2008, the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sam Houston, TX, issued Orders 
182-334 awarding him MOS 68G effective 17 July 2008.  

7.  On 17 July 2008, he was released from ADT and transferred to a TPU in Tucson, AZ.  
8.  A DA Form 1059 (Service School Academic Evaluation Report) shows he successfully completed training for MOS 68G on 17 July 2008.  

9.  In a memorandum, dated 21 July 2008, the Chief Enlisted incentives Branch, Office of the Deputy Chief of Staff, G-1, stated:

	a.  the PSEB criteria was described in Army Regulation (AR) 601-210 (Regular Army and Army Reserve Enlistment Program), paragraph 10-5, dated 7 June 2007;

	b.  the term "honorable discharge" as required for bonus eligibility for the PSEB included discharges as described in AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, paragraph 3-7a; and 

	c.  the Soldier may be ineligible for payment of the PSEB if separated under paragraph 3-7b (General discharge, under honorable conditions) or paragraph 
3-7c (under other than honorable conditions discharge).

10.  He was promoted to sergeant (SGT)/E-5 on 1 October 2008.  

11.  An email message, dated 5 February 2009, from a representative at the  U.S. Army Reserve Command (USARC) indicated the applicant received a general discharge from his last period of service from the Air National Guard on 14 August 2004 and he was not eligible for a PSEB.

12.  An email from USARC, a representative stated the applicant was not entitled to a PSEB.  The representative also incorrectly stated he had over 16 years of service, he received an under honorable conditions discharge, and all periods of prior service need to have been honorable to be entitled to a PSEB.

13.  On 18 January 2011, he was placed on a permanent profile of 331211 for asthma, shoulder pain, bee sting allergy, and hearing loss.  

14.  A DA Form 705, dated 3 April 2011, shows he passed the APFT with total points of 254.  

15.  In a memorandum, dated 12 August 2011, a Supervisory Human Resources Specialist of the 63rd Regional Support Command (RSC), Mountain View, CA, informed him that he was medically disqualified for continued service in the USAR under the provisions of AR 40-501 (Standards of Medical Fitness), chapter 3.  The reasons for his medical disqualification were provided by the 63rd RSC as asthma, shoulder pain, bee sting allergy, and hearing loss (as indicated on DA Form 3349).  The memorandum indicated that Soldiers with permanent 3 and 4 (P3/4) were managed by the Health Services Branch, 63rd RSC until their case had been adjudicated.  He was informed of his requirement to complete the "Acknowledgement of Notification of Medical Unfitness for Retention and Elections Option" indicating his option regarding his medical disqualification; however, this election form is not available.  

16.  In a letter, dated 12 August 2011, he was again informed that he was medically disqualified for continued service in the USAR under the provisions of AR 40-501, chapter 3 based on the reasons cited on his DA Form 3349.  The letter indicated that in accordance with AR 40-501 and AR 635-40, all Soldiers who received a P3/4 profile must be medically evaluated for continued service in the USAR.  He was further informed that by law, he had the right to choose which option he would like to pursue in order to properly adjudicate his medical fitness.  If he requests to go to a PEB for determination of medical fitness retention standards, the type of board (Duty versus Non-Duty), would depend on his ability to produce a valid LOD for the profiled condition.  He was advised that if he didn't have an LOD for that condition, but believed it to be in the LOD, he should contact his Unit Administrator and the RSC Health Services Branch.  

17.  A DA Form 7652, dated 20 September 2011, indicated his commanding officer (CO) recommended retaining the applicant.  In Section III A, the CO marked the "No" block indicating the applicant's medical conditions/limitations affected unit accomplishing mission with the comments "Consider Soldier's performance over the past several months.  Indicate whether performance seems to be improving, worsening, or static.  For example, where Soldier demonstrated periods of not completing tasks to time and quality standards, but is now completing tasks to standards indicate Soldier had issues but is now performing normally."

18.  On 26 November 2011, an informal PEB determined he was unfit for service based on asthma and a right shoulder condition.  The PEB determined the applicant was physically unfit and he would be referred for case disposition under Reserve Component regulations.  

19.  The PEB proceedings determined:

	a.  unfit as it placed the applicant at an increased risk when performing basic warrior tasks and battle drills;

	b.  profile prevented functional activities;

	c.  recommended 5-10 pounds lifting capacity for right side; and
	d.  as a 68G, the applicant was expected to lift 25 pounds on a frequent and constant basis and 50 pounds occasionally.

20.  The PEB was adjudicated as a non-duty related case under the provisions of Department of Defense (DOD) Directive 1332.18 (Separation or Retirement for Physical Disability), paragraph 3.5 and DOD Instruction 1332.38 (Physical Disability Evaluation), Enclosure 3, part 2, paragraph E3.P2.3.  

21.  He concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.  

22.  On 20 April 2012, Headquarters, 63rd RSC published Orders 12-111-00041, honorably discharging him from the USAR under the provisions of AR 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), effective 20 May 2012.  The additional instructions on the orders read "Medically Disqualified - Not Result of Own Misconduct.  Non-Duty Related Medical Impairment or Condition."  

23.  His Chronological Statement of Retirement Points show he completed 13 years, 3 months, and 22 days of qualifying service for retired pay at age 60.  

24.  His service record is void of evidence to show he requested a waiver under the provisions of AR 135-178 for retention in the USAR after he was determined to be medically unfit to meet the standards of AR 40-501, chapter 3.

25.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability incurred while entitled to basic pay.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several LOD criteria to be eligible to receive retirement and severance pay benefits.  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.

26.  AR 40-501 governs medical fitness standards for retention and separation, including retirement.  Paragraph 9-12 (Request for PEB evaluation) states that Reserve Component (RC) Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities.  Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USAR Command RSC or the HRC Command Surgeon's office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.

27.  AR 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (ranging from a numerical rating of 1 to 4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, 
U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and 
S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  

28.  AR 40-501, paragraph 10-25 (Not in the Line of Duty (NILOD)), states the Department of Defense Instruction 1332.38 states that members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  Further explanation is available in TAPD-Policy Memorandum #4, Processing RC 
Non-Duty Related Cases.  This policy memorandum outlines the procedures and requirements for processing boards on RC Soldiers with non-duty related impairments that are pending separation for medical disqualification.  Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier.  The Soldier will have a completed LOD or memo that notifies him/her of non-duty related findings (NILOD).  The Soldier may not challenge the PEB findings in person.

29.  AR 40-501, paragraph 10-25a(2), states the Military Personnel Office is responsible for notifying the Soldier, in writing, that his/her injury is NILOD and that he/she is pending separation for a medical disqualifying condition.  The notification will also advise the Soldier that he/she has the right to prepare a 
Non-Duty PEB packet for a fitness determination.
30.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

31.  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.

32.  Title 37, U.S. Code, section 308i, states, in part, a person who is a former enlisted member of an armed force who enlists in the Selected Reserve of the Ready Reserve of an armed force for a period of 3 or 6 years in a critical military skill designated for a bonus by the Secretary concerned may be paid a bonus in the amount of $15,000 for a 6-year enlistment or $7,500 for a 3-year enlistment.  

33.  AR 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.  Chapter 12 pertains to separation for other reasons.  Paragraph 12 provides guidance for the separation of Soldiers who are medically unfit for retention.  It states that separation will be accomplished by separation authorities when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is granted a waiver or eligible for transfer to the Retired Reserve. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service record is void of evidence that indicates his release from the USAR was in error or unjust.

2.  The evidence of record shows he sustained an injury to his right shoulder in June 2008 while participating in combat drills.  An LOD was provided, but it is not signed by any health care provider and it does not include a diagnosis of any kind.  There are also no supporting medical documents.

3.  In January 2011, he was placed on a permanent profile of 331211 for asthma, shoulder pain, bee sting allergy, and hearing loss that was generated by the RSC.  Such profiles are not completed by the examining or treating physician but are based on the Soldier's self reported condition on the annual screening assessment and any medical documents provided.  

4.  He was notified by a memorandum, dated 12 August 2011, of his medical disqualification and was informed of his right to choose which option he would like to purse in order to properly adjudicate his medical fitness.  The memorandum indicated if he requested a PEB, the type of board (Duty versus Non-Duty), would depend on his ability to produce a valid LOD for the profiled conditions.  However, his service record is void of evidence which shows a formal LOD was completed for his medical conditions.  He was required to submit an Acknowledgement of Notification of Medical Unfitness for Retention and Elections Option indicating his option regarding his medical disqualification.  

5.  In the absence of his Acknowledgement of Notification of Medical Unfitness for Retention and Elections Option, it appears he requested referral to a PEB for a determination of his medical fitness.  He was evaluated by an informal PEB as a nonduty-related case and was determined to be unfit.  There is insufficient evidence to show the right shoulder injury he incurred in 2008 is related to the right shoulder condition which contributed to his finding of being unfit in 2011.

6.  The applicant was honorably discharged on 20 May 2012 under the provisions of AR 135-178, for being medically unfit with 13 years, 3 months, and 22 days of qualifying service for retirement at age 60.  

7.  The applicant requests two contradictory actions – that he be reinstated in the USAR, implying that he believes he is physically fit for service, and that his separation be changed to a medical retirement.

8.  His service record is void of evidence that shows he requested a waiver under the provisions of AR 135-178 for retention in the USAR after he was determined to be medically unfit to meet the standards of AR 40-501, chapter 3.  The law provides for retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  

9.  In the absence of compelling evidence to the contrary, it is presumed that the authority and reason for his separation are correct and are in accordance with applicable regulations.  Therefore, he is not entitled to correction of his records to show that he was discharged by reason of "duty related" in lieu of "non-duty" related medical impairment or condition(s).  

10.  The evidence of record shows the applicant contracted to serve in the USAR for a period of 6 years and to be paid a bonus of $15,000.  His bonus addendum stated that one of the eligibility criteria for the bonus was to be in receipt of an honorable discharge issued on separation from prior military service.  Emails from USARC indicate he received a general discharge from his last period of service from the Air National Guard.  As a result, he was not eligible for a PSEB.  Therefore, he is not eligible for payment of a PSEB.  



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)                                         AR20120013292



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ABCMR Record of Proceedings (cont)                                         AR20120013292



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