BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120016705 


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 medical discharge.

2.  The applicant states, in effect:

* he was under medical care at Fort Dix after his deployment to Bosnia
* in December 2003, he was "told" to sign papers authorizing treatment closer to home, however they were discharge papers
* he was waiting for the results of his medical evaluation board (MEB)
* he was sent home with no job for six months while waiting for results of the MEB
* he was on active duty when he became disabled and as a result, should have been medically retired with benefits 

3.  The applicant provides:

* orders
* a DA Form 3349 (Physical Profile)
* three DA Forms 2173 (Statement of Medical Examination and Duty Status) 
* 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.  The applicant enlisted in the Maryland Army National Guard (MDARNG) on 13 July 1988.  

3.  Orders Number 238-01, dated 26 August 2001, issued by Headquarters, U.S. Army Garrison, Fort Dix, NJ, show he was ordered to active duty in support of Operation Joint Forge on 22 August 2001.  His record shows he deployed to Bosnia.

4.  He submitted:  

	a.  three DA Forms 2173, which show on:

		(1)  25 February 2002, he was treated for pain in his hips and legs when he stated he was injured when he fell off a truck on 1 November 2001;

		(2)  14 December 2001, while deployed in Tuzla, Bosnia, he was evacuated to Germany for evaluation and treatment of glaucoma;

		(3)  9 March 2002, he was seen for ear pain after the aircraft he was riding in loss pressure during the flight;

	 	(4)  item 31 (Formal Line of Duty Investigation Required),on each DA Form 2173 "NO"; and 

		(5)  item 32 (Injury is Considered to Have Been Incurred in LOD), on each DA Form 2173 "YES."

	b.  a DA Form 3349, dated 16 March 2002, which shows he was recommended for a permanent "2" profile due to low back pain.

	c.  11 pages of his Standard Form (SFs) 600 and allied documents, dated between 2 February 2002 and 16 April 2002, that noted a history of:

* pain in hips and legs 
* lower back pain, possible disk disease (10 years)
* pain in both ears

5.  On 18 May 2002, he was honorably released from active duty at the completion of required active service and he was returned to his ARNG unit.  He completed 8 months and 27 days of net active service this period.  

6.  On 24 September 2002, an MEB convened and after consideration of clinical records, laboratory findings, physical examinations, and appeals, on 10 February 2003, the MEB:

	(a)  diagnosed the applicant as having the medically-unacceptable condition of chronic back pain, which existed prior to service; 

	(b)  found the applicant met the retention standards for hypertension and adjustment disorder; 

	(c)  and referred him to a physical evaluation board (PEB).

7.  The applicant's record is void of nor did he not submit any evidence showing he appeared before a PEB.

8.  The applicant submitted a copy of a Test Form 46-2-1, dated 21 January 2003, which shows he was found to be fit to perform military duties on               21 January 2003, but unfit to perform on his civilian job from 21 January 2003 to 30 March 2003 due to lower back pain.

9.  His record contains:

	a.  Orders 083-074 MD-STARC-ARP, issued by Headquarters, Maryland National Guard, Fifth Regiment Armory, dated 30 May 2003, honorably discharging the applicant from the MDARNG and assigning him to the U.S. Army Reserve Control Group (Retired Reserve) effective 1 June 2003 due to being found to be medically unfit by a medical board.  

	b.  a memorandum issued by Headquarters, Maryland National Guard, Fifth Regiment Armory, dated 30 May 2003, Subject:  Notification of Retired Pay at Age 60 with 15 years of Service.

10.  Title 10, USC, section 12731b provides a special rule for members with physical disabilities not incurred in the line of duty.  It states, in pertinent part, that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes.  This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC.  

11.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he should have been medically retired while he was on active duty was carefully considered.  

2.  Evidence of record shows the applicant was a member of the MDARNG, a Reserve Component, who was ordered to active duty in support of Operation Joint Forge.  Upon completion of his active duty service he was transferred back to the control of the MDARNG. 

3.  The applicant incurred injuries to his hips and legs while he was on active duty; those injuries were not the reason for his being found unfit for retention.  He submitted a Test Form 46-2-1, dated 21 January 2003, which shows he was found to be fit to perform military duties but unfit to perform on his civilian job due to lower back pain.  The MEB found that his chronic back pain, which existed prior to his entering service, was his only medically-unacceptable condition.

4.  Since his unfitting condition was not incurred in the line of duty, he was not entitled to a medical separation.

5.  However, since he was a member of the Selected Reserve who was medically disqualified for continued service and he had completed at least 15 qualifying years for a non-regular retirement, he is eligible for retired pay at age 60. 

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)                                         AR20120016705





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ABCMR Record of Proceedings (cont)                                         AR20120016705



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