BOARD DATE:	  18 June 2013

		DOCKET NUMBER:  AR20120019958 


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/medical retirement, or in effect, a 15-year medical retirement.

2.  The applicant states:

	a.  While serving as an active Reservist in the U.S. Army in 2004, he sought medical treatment from the Department of Veterans Affairs (VA) for a herniated disc in his back which was affecting his ability to perform the physical requirements of his military occupational specialty (MOS).  The VA awarded him a service-connected disability rating on 22 July 2004 for chronic cervical strain with decrease in joint space at C6-C7.

	b.  On 26 August 2004, he sent a letter to his Reserve unit requesting to be medically discharged due to this service-connected injury/disability which limited his ability to perform push-ups and sit-ups or travel long periods.  He also sent a copy of his VA Rating Decision to his unit in support of his request.  His honorable discharge was not processed until 30 November 2005.  He was not issued a medical discharge which was incorrect.  His unit never provided him with information to process out of the U.S. Army Reserve (USAR) with a medical or disability retirement as originally requested.  

   c.  The documents reveal his Reserve unit knew this because post-it notes on the letter from Major General Dxxxxx, Commander, 80th Division (Institutional Training), state, "I would like to know how many good years he has for retirement if he has 15+ [years of qualifying service] – needs copy of PQR [Personnel Qualification Record]" and the other note states "SM [service member] is requesting medical discharge not hardship per LTR [letter] but signed 4651 [DA Form 4651 (Request for Reserve Component Assignment or Attachment)] requesting discharge.  Which does he want [?]"

   d.  His Reserve unit never contacted him at anytime to clarify whether he was requesting a medical discharge.  He was never given the opportunity to apply for medical retirement or even a correction during the period August 2004 through November 2005 when his discharge was effective.  He remained unaware that he had any appeal rights until 2012 when his spouse began working for the VA.

3.  The applicant provides:

* 1987 Radiology Report
* Plateau Medical Center records
* three Standard Forms 600 (Health Record – Chronological Record of Medical Care)
* Standard Form 545 (Laboratory Report)
* 2004 VA Rating Decision
* 2004 letter to his Reserve unit
* concurrence of hardship discharge request memorandum
* 2005 USAR discharge orders
* Confidential Summary (10 pages)
* 2005 Progress Notes (5 pages)
* 2005 and 2007 VA Rating Decision
* letter from VA

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 Regular Army on 15 October 1985 for 3 years.  He completed training and was awarded primary MOS 11B (Infantryman) and secondary MOS 68J (Aircraft Fire Control Repairer).  He was honorably released from active duty on 14 October 1988, at the expiration of his term of service, and was transferred to the USAR Control Group (Reinforcement).

3.  He reenlisted in the USAR on 10 July 1993 for 6 years.

4.  He provides the following:

   a.  Plateau Medical Center medical record, dated 9 November 1987, which stated he was involved in an automobile accident on 6 November 1987 and was struck from the rear.  He sustained neck pain and cervical pain in his upper back areas.

   b.  Radiology Report, dated 9 November 1987, which shows he underwent a Cervical Spine Series examination.

   c.  Three Standard Forms 600, dated between 3 November 1987 and 6 April 1988, which show he was seen in a civilian emergency room with complaints of mild tenderness and pain in the neck area as a result of whiplash.

   d.  A Confidential Summary, dated 15 July 2004, which shows he underwent an examination for a service-connected injury claim.

   e.  A VA Rating Decision, dated 22 July 2004, which shows he was awarded a 10 percent service-connected disability rating for chronic cervical strain with decrease in joint space at C6-C7.

   f.  A letter, dated 26 August 2004, wherein he advised his Reserve unit of his receipt of disability from the VA due to a service-connected injury.  He stated he was no longer able to perform the physical training required by the USAR.  Specifically, his condition was irritated by push-ups and sit-ups and his new assignment would require him to travel over 4 hours one way in a car and stand for long periods instructing.  He requested a medical discharge from the USAR.

   g.  A memorandum, dated 8 January 2005, wherein the Commanding General, Headquarters, 80th Division Institutional Training, concurred with the applicant's request for a hardship discharge.

5.  A DA Form 2166-8 (Noncommissioned Officer Evaluation Report) for the period September 2003 through August 2004 shows he was rated as successful and fully capable.


6.  He also provides the following:

	a.  A VA Rating Decision, dated 16 May 2005, which shows his 10-percent disabling rating was increased to 30 percent effective 29 January 2004.  He was also awarded a 0-percent service-connected rating for left upper extremity radiculopathy.

	b.  Progress Notes, dated 24 May 2005, which show he underwent an evaluation for outpatient therapy.

	c.  A VA Rating Decision, dated 28 June 2007, which shows he was awarded a 30-percent service-connected rating for left upper extremity radiculopathy.

	d.  A letter from the VA, dated 6 June 2008, certifying his entitlement to a combined 50 percent service-connected disability compensation.

7.  The applicant's records contain and he provides a copy of 
Orders 05-334-00004 issued by Headquarters, 80th Division (Institutional Training), honorably discharging him from the USAR with an effective date of 30 November 2005 under the provisions of Army Regulation 135-178 (Army National Guard (ARNG) and USAR Enlisted Administrative Separations).

8.  His Chronological Statement of Retirement Points, dated 6 June 2013, shows he completed 15 years and 3 months of creditable service for retired pay as of his retirement year ending 30 November 2005.

9.  He will reach age 60 on xx May 2026.

10.  Army Regulation 135-178 sets the policies for the administrative separation of ARNG and USAR enlisted Soldiers.

11.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

13.  Title 10, U.S. Code, section 12731b (Special Rule for Members with Physical Disabilities Not Incurred in Line of Duty), states that in the case of a member of the Selected Reserve of a Reserve Component 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 purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15 and less than 20 years of service computed under section 12732 of this title.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant injured his cervical spine in a automobile accident in November 1987.  He was awarded a 10-percent service-connected disability rating for this injury by the VA.  In August 2004, he notified his Reserve unit of the VA's decision and requested a medical discharge due to the fact he was no longer able to participate in physical training and travel as a result of the injury.  It appears initially his Reserve unit was unsure as to the type of discharge he was requesting, a medical or hardship.  He was administratively discharged on 30 November 2005 under the provisions of Army Regulation 
135-178.

2.  His NCOER, dated February 2005, shows he was able to perform the duties of his MOS.  There is no evidence in his record that a line-of-duty determination was made for any medical condition during his period of active Reserve duty.  There is no evidence of record showing he was determined medically unfit at the time of his separation.  Without evidence to the contrary, the available evidence shows he was fit for duty at the time of separation.  He provides insufficient evidence to show he was improperly denied a medical discharge/medical retirement.

3.  There appears to be no error or injustice in his separation process from the USAR.  His contentions and the documents he submitted do not demonstrate an error or injustice in the disposition of his case.  He has provided insufficient evidence to show he is entitled to the requested relief.

4.  The VA rating decisions and medical documents provided by the applicant were carefully considered.  However, the award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service (i.e., service connected).  In this case, he was properly evaluated and is being compensated for his service-connected medical conditions by the VA.

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)                                         AR20120019958



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ABCMR Record of Proceedings (cont)                                         AR20120019958



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