IN THE CASE OF:	  

		BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20120019849 


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 placement on the U.S. Army Active Duty Retired List effective 16 July 2010.

2.  The applicant states:

* he incurred asthma and he was considered to be medically disqualified for continued service while he was on active duty
* he went through the Military Occupational Specialty (MOS)/Medical Retention Board (MMRB)/Physical Evaluation Board (PEB) process and was determined to be fit for duty for his medical condition
* in June 2010 he was informed that he was no longer eligible for continued service due to the same medical condition
* he was given the option to be placed on the U.S. Army Retired Reserve list which he selected
* his 15-Year retirement letter shows he was placed on the list due to physical disability not incurred in the line of duty
* his physical disability was incurred in the line of duty as shown in the MMRB/PEB records
* as a result of the incorrect determination he was not allowed to continue his U.S. Army Reserve (USAR) service
* he could have applied for and accepted mobilization orders or active duty for special work orders which would have allowed him to complete the necessary active duty time for placement into the Sanctuary program
* he then could have retired from active duty


3.  The applicant provides:

* Notification of Medical Retention Board, dated 2 June 2010
* Medical Record Review Memorandum, dated 13 May 2010
* DA Form 3349 (Physical Profile), dated 23 November 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 31 December 1991.  He completed training as an infantryman.  He was awarded an accounting specialist MOS in 1995.  He remained on active duty through continuous reenlistments and extensions.

2.  An Air Force Medical Evaluation Board (MEB) Narrative Summary was completed on the applicant on 6 February 2001.  The medical officer's impression was:

* Allergic Rhinitis
* Intrinsic Asthma (exercise-induced asthma)
* Extrinsic Asthma (mild intermittent asthma)

3.  The MEB Narrative Summary stated that in 1992 the applicant underwent pulmonary function testing and tested positive for mild exercise-induced asthma.

4.  The medical officer stated that there was no question as to the fact that the applicant had both intrinsic and extrinsic asthma, which disqualified him from worldwide duty.  He stated it was his stern recommendation that he be presented to an MEB per Army Regulation 40-501 (Standards of Medical Fitness).

5.  On 19 March 2001, the applicant was placed on a permanent P-3 physical profile for the following conditions:

* Allergic Rhinitis
* Intrinsic Asthma
* Extrinsic Asthma

6.  His assignment limitations were "not worldwide qualified, no assignment to isolated areas where definitive medical care (U.S. Armed Forces hospital) is not available."

7.  An MEB convened on 26 March 2001 to determine whether the applicant should be referred to a PEB for consideration.  The MEB's diagnosis was Allergic Rhinitis, Intrinsic Asthma (exercise induced), and Extrinsic Asthma (mild intermittent).  The MEB determined that all of his conditions were incurred in the line of duty and while entitled to basic pay; none of his conditions existed prior to service; and all of his conditions were permanently aggravated by service.  The MEB recommended that the applicant be referred to an informal PEB.

8.  On 27 March 2001, the applicant's commanding officer forwarded a memorandum to the Commander, Winn Army Community Hospital (ACH), Fort Stewart, Georgia, stating:

* he was physically capable of reasonably performing his duties as an accounting specialist under peacetime conditions
* he had exercised-induced asthma and bronchitis which hindered him from passing the semi-annual Army Physical Fitness Test (APFT)
* he was currently taking medication for his condition 
* he was overweight and exceeded his maximum body fat content allowed under the Army height and weight standards of Army Regulation 600-9 (The Army Body Composition Program)
* he was expected to perform duties pertaining to accounting, accounts payable, disbursing, budget, and internal control
* the physical requirements of his job include being able to occasionally lift 20 pounds vertically 1-5 feet and carry it up to 300 feet
* he was also required to frequently sit for a period of 4 hours duration, possesses finger dexterity in both hands, and frequently review detailed ledger sheets

9.  The applicant's commander stated that his overall performance as an NCO was marginal at best and that he demonstrated he could not obtain minimum standards on the APFT.  He stated that considering all of the facts, he could not be physically capable of the demands expected of him under adverse conditions, such as combat, mobilized deployments, and strenuous training.  The applicant's commander recommended that he not be favorably considered fit for continued military service.

10.  An informal PEB convened on 12 July 2001 to determine the applicant's fitness for duty.  The PEB stated "based on a review of the objective medical and personnel evidence of record and considering the physical requirements for reasonable performance of duties required by grade and military specialty, the PEB finds the Soldier fit for duty within the limitations of the profile.  The Soldier's commander indicated that he is capable of performing the duties of his MOS but is hindered by the facts that he is overweight and is a marginal performer at best. Soldier's profile (DA Form 3349) allows him a wide range of physical activities to include an alternate Army Physical Fitness Test."  The PEB recommended that the applicant be returned to duty as fit.

11.  On 19 July 2001, the Chief, Physical Disability Branch notified the Commander, Winn ACH of the PEB's findings and recommendation.  He was told that if the applicant was not scheduled for separation or retirement for reasons other than physical disability, the Soldier should be returned to duty.

12.  The applicant reenlisted in the RA on 27 July 2001.  He was discharged on 9 December 2006 upon completion of his required active service and he immediately enlisted in the USAR.

13.  On 25 July 2009, the applicant was seen as an out-patient at the Nashoba Valley Medical Center for lightheadedness and heat exhaustion.  According to the DA Form 2173 (Statement of Medical Examination and Duty Status), he was attending school at Fort Devens, Massachusetts, on the date of the incident.  He was participating in scheduled activities when he collapsed and was taken to Nashoba Valley Medical Center for evaluation.  He was diagnosed with mild heat exhaustion.  The DA Form 2173 shows that his "injury" was considered to have been incurred in the line of duty.

14.  On 13 May 2010, the applicant's commander was notified that a medical records review submitted on him indicated that he did not meet the medical retention requirements in accordance with Army Regulation 40-501, paragraph 
3-27a(2)c (asthma).  He was instructed by the Command Surgeon to begin the process for separation in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

15.  On 2 June 2010, the applicant was notified that as a result of his medical evaluation, he was medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501, chapter 3.  He was told that Soldiers with permanent 3 and 4 physical profiles are managed by the Health Services Branch until their case has been adjudicated.  He was told he was required to complete the "Acknowledgement of Notification of Medical Unfitness for Retention and Elections Option" indicating his option regarding his medical disqualification.

16.  Headquarters, 81st Regional Support Command Orders 10-167-00029 were published on 16 June 2010, releasing the applicant from his Reserve assignment and assigning him to the Retired Reserve effective 16 July 2010.  The orders show "Medically Disqualified – Not Result of Own Misconduct" as the reason for his release from assignment. 

17.  The applicant's letter is not dated; however, his records show he received a Notification of Eligibility for Retired pay at Age 60 (Selected Reserve 15-Year Letter).  The letter states that as a Selected Reserve member with a least 15 years qualifying service, he was eligible under legislation (Title 10, U.S. Code, section 1273b, physical disability not incurred in the line of duty) to apply for retired pay on attaining age 60.  (The applicant had over 18 years of qualifying service at the time.)  The letter states his eligibility was determined based on the following qualifications:

	a.  He was not eligible for retention in the Selected Reserve.

	b.  He had completed at least 15 years of qualifying service.

	c.  He had completed the required years of qualifying service while a member of a Reserve component as specified by 10 USC 1223.

	d.  He had requested transfer to the Retired Reserve.

18.  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.

19.  Army Regulation 635-40, chapter 6 states that to be considered for continuance on active duty (COAD), a Soldier must be:  (a) found unfit by a PEB because of a disability that was in the line of duty; (b) capable of maintaining one's self in a normal military environment without adversely affecting one's health and the health of others and without undue loss of time from duty for medical treatment; (c) physically capable of performing useful duty in a military occupational specialty for which he or she is currently qualified or potentially trainable; and (d) eligible due to (1) having 15 years but less than 20 years of total service, or (2) being qualified in a critical skill or shortage MOS, or (3) having a disability that was the result of combat.

20.  Army Regulation 635-40, chapter 6 states that to be considered for continuance on active Reserve status (COAR), a Soldier must be:  (a) found unfit by a PEB because of a disability that was in the line of duty; (b) capable of maintaining one's self in a normal military environment without adversely affecting one's health and the health of others and without undue loss of time from duty for medical treatment; (c) physically capable of performing useful duty in a military occupational specialty for which he or she is currently qualified or potentially trainable; and (d) eligible due to (1) having 15 years but less than 20 years of qualifying service for nonregular retirement, or (2) being qualified in a critical skill or shortage MOS, or (3) having a disability that was the result of combat.

21.  Section 1176(b)(1) of Title 10, U.S. Code states that, if on the date prescribed for the involuntary separation (other than for physical disability or for cause) or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause) from an active status of a reserve enlisted member or officer he is entitled to be credited with at least 18, but less than 20, years of service, he may not be discharged, denied reenlistment or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his discharge from the RA.  An MEB had referred him to a PEB for asthma in 2001, but the PEB found him to be fit for duty.  He continued to serve in the RA until December 2006.

3.  A medical records review submitted on him 9 years after his PEB indicated that he did not meet medical retention requirements in accordance with Army Regulation 40-501 due to asthma, and he was transferred to the Retired Reserve as a result of being medically unqualified due to a non-duty related condition.

4.  It is acknowledged that he had asthma while on active duty.  However, he enlisted in the RA on 31 December 1991.  His MEB Narrative Summary shows that less than a year later, sometime in 1992, he had been diagnosed with exercise-induced asthma.  He simply provides insufficient evidence that his asthma was incurred while on active duty.

5.  The applicant was not eligible for sanctuary because he was separated due to being medically unfit.

6.  Since he was not found to be unfit by a PEB (and because there is insufficient evidence to show he incurred his medical condition while entitled to basic pay) he would not have been eligible for COAR.  In addition, as he was not on active duty at the time he separated he would not have been eligible for COAD.

7.  The applicant has not shown error or injustice in the actions taken by the Army in his case.

8.  In view of the foregoing, the applicant's request should be denied.

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 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)                                         AR20120019849



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ABCMR Record of Proceedings (cont)                                         AR20120019849



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