BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120019900 


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 correction of the narrative reason for her discharge from honorable to medical (physical disability) retirement, recall to active duty (AD) to appear before a medical evaluation board (MEB) and/or a physical evaluation board (PEB), and back pay and allowances to 20 August 2011.

2.  She states:

* while serving in Iraq she started having health problems with her legs and joints which were always swelling, causing her to limp and drag her leg
* upon redeployment, she was told to seek medical treatment at the military hospital close to her home rather than at the demobilization site
* she is now wheelchair-bound as a result of her service-connected multiple sclerosis (MS)
* she has post-traumatic stress disorder, depression, seizures, clostridium difficile (gram-positive bacteria that causes severe diarrhea and other intestinal diseases), and her eyesight is degrading
* she is under the care of the Department of Veterans Affairs (VA)
* she was wrongly discharged from the U.S. Army Reserve (USAR) while undergoing medical care for a service-connected illness "contracted" in Iraq
* she should have been retained on AD or returned to AD to appear before a medical board and considered for a full medical retirement
* she is entitled to a medical retirement with full retirement benefits and back pay to 20 August 2011
* only 17 of her 20 years are considered "good" years because she was unable to drill because she could not walk or drive from 18 July 2008 to 21 August 2011

3.  She provides:

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* 56 pages of her medical records and allied documents
* three statements from the VA
* Form WH-350 (Certification of Health Care Provider)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DA Form 4856 (Developmental Counseling)
* DA Form 4651 (Request for Reserve Component Assignment or Attachment)
* Acknowledgement of Notification of Medical Unfitness for Retention and Election of Options
* memorandum, Headquarters, 81st Regional Support Command, dated 30 June 2010, subject:  Notification of Medical Retention Board Referral, (Applicant)
* Orders 11-202-00047, Headquarters, 81st Regional Support Command, dated 21 July 2011

CONSIDERATION OF EVIDENCE:

1.  On 18 July 1990, the applicant enlisted in the USAR.

2.  On 8 February 2003, she was ordered to AD in support of Operation Enduring Freedom and served in Kuwait from 17 April 2003 to 16 April 2004.  On 22 May 2004, she was released from AD.

3.  On 14 July 2006, she was ordered to AD in support of Operation Iraqi Freedom and served in Iraq from 19 September 2006 to 17 September 2007.  On 15 October 2007, she was released from AD.

4.  The applicant submitted:

	a.  56 pages of her medical records from the Birmingham VA Medical Center, dated from 8 April 2008 to 1 December 2011, which show she was diagnosed with MS in 2008;

	b.  three statements from the VA, dated 25 July 2008, which show she was newly diagnosed with MS and would be followed by neurology throughout her lifetime;

	c.  a Form WH-350 from the U.S. Department of Labor, dated 25 July 2008, which states she was diagnosed with MS;

	d.  a DA Form 2173, dated 14 October 2008, which shows she was seen on 12 May 2008 for an examination and hospitalization for full evaluation of MS which occurred in the line of duty.  Item 30 (Details of Accident – Remarks) states she traveled to Fort Benning, GA, on 1 May 2008 in support of the unit's mission.  Constant movement during mission resulted in a delay in medical treatment and extreme worsening of her condition.

	e.  a memorandum, Headquarters, 81st Regional Support Command, dated 30 June 2010, subject:  Notification of Medical Retention Board Referral, (Applicant), which shows she was found to be medically disqualified for continued service in the USAR.  The memorandum included the following instructions:

		(1)  she was required to complete the Acknowledgement of Notification of Medical Unfitness for Retention and Election of Options indicating her options regarding her medical disqualification; and

		(2)  she had 30 days in which to return her response.  Failure to respond within 30 days would constitute a waiver of all rights and would result in her being discharged with an honorable character of service;

	f.  three DA Forms 4856, dated respectively:

		(1)  4 August 2010, which indicated she was counseled and elected medical retirement;

		(2)  4 August 2010, which indicated she received an exit interview due to medical retirement; and

		(3)  9 August 2010, which indicates she elected retirement in lieu of a medical board;

	g.  an Acknowledgement of Medical Unfitness for Retention and Election of Options, in which shows she:

   (1)  requested reassignment to the Retired Reserve with early
qualification of eligibility to receive retired pay at age 60, because she had at least 15 years but less than 20 years of qualifying service; and she
   
   
   (2)  was not eligible for a 20 year retirement;  
   
   (3)  did not request an honorable discharge from the USAR; and 
   
   (4)  did not request an informal PEB to review her medical records for a final
determination of her medical fitness for retention.

	h.  a DA Form 4651, dated 19 August 2010, wherein she requested to be transferred to the Retired Reserve and receive all benefits as determined by all medical documents received; and  

	i.  Orders 11-202-00047, Headquarters, 81st Regional Readiness Command, dated 21 July 2011, which show she was released from her current assignment by reason of being medically disqualified and transferred to the Retired Reserve effective 20 August 2011.

5.  The applicant's USAR retirement points history statement shows she had 17 years of creditable service for retired pay.

6.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  

   a.  Chapter 3 (Retention Medical Fitness Standards) of Army Regulation     40-501, as amended, provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions, to include MS, listed in this chapter should be referred for disability processing.

   b.  Chapter 9-10 states that normally Reserve members who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) or discharged from the USAR per Army Regulation 135-175 (Separation of Officers) or Army Regulation 135-178 (Enlisted Administrative Separations).  They will be transferred to the Retired Reserve only if eligible and if they apply for it.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the military treatment facility commander with the primary care responsibility will evaluate those referred to him and will refer the member to an MEB if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition which incurred while the member was entitled to basic pay.

8.  Title 10, U.S. Code, section 12731b, is a special rule for members with physical disabilities not incurred in the line of duty and states, in effect, that in the case of a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary may determine to treat the member as having met the necessary service requirements for retirement at age 60 if the member has completed at least 15 and less than 20 years of qualifying service for retired pay.

9.  Multiple sclerosis is a chronic disease that damages the nerves in the spinal cord and brain, as well as the optic nerves that is commonly diagnosed between ages 20 and 40.  www.nlm.nih.gov/medlineplus/ency/article/000737.htm?

DISCUSSION AND CONCLUSIONS:
1.  Available evidence shows that multiple sclerosis is a chronic disease.  Even if the symptoms of the disease began to manifest themselves while the applicant was deployed, it cannot be determined if she incurred the disease during a period she was entitled to basic pay.  

2.  The evidence of record shows the applicant did not request an informal PEB to review her medical records for a final determination of her medical fitness for retention.  Without an informal PEB, there would have been no basis for referring her to a formal PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.  Further, there is insufficient evidence to show her condition was incurred while she was entitled to basic pay.

3.  Regrettably, there is insufficient evidence to show the applicant's illness was incurred while she was entitled to basic pay and thus insufficient evidence to have her evaluated by an MEB/PEB. 

4.  The evidence of record shows the applicant was found to be medically disqualified for retention in the Selected Reserve.  She was subsequently discharged from the Selected Reserve and transferred to the Retired Reserve based upon her written request for an early non-Regular retirement because she completed at least 15 but less than 20 years of qualifying service.  There is no evidence she was issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60 (15-year letter).

5.  In view of the foregoing, the applicant's records should be corrected as recommended below.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x__  ____x____  ___x_____  PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she met the eligibility criteria for Reserve retired pay at age 60 and issuing her a Notification for Eligibility for Non-Regular Retired Pay at Age 60 
(15-year letter).

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to recalling the applicant to AD to appear before an MEB or PEB, changing the reason for her discharge to medical (physical disability) retirement, or back pay and allowances to 20 August 2011.



      ___________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)                                         AR20120019900



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120019900



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1