IN THE CASE OF:	  

		BOARD DATE:	  16 July 2012

		DOCKET NUMBER:  AR20120020672 


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, in effect, additional retirement points to provide credit sufficient for him to attain 20 years of qualifying service toward a nonregular retirement and issuance of a Notice of Eligibility for Retired Pay at Age 60 (also known as a 20-Year Letter).

2.  The applicant states, in effect, he believes he should have been allowed to continue performing duty sufficient for completion of 20 years of qualifying service for a nonregular retirement.  The reason for the delay in his filing this request was that he was unable to find a way for review of records until recently.

3.  The applicant provides:

* a list of his issues related to his request
* Army Reserve Personnel Command (ARPC) Form 249-2-E (Chronological Statement of Retirement Points)  
* Wilcox U.S. Army Health Clinic letter, subject: Continuation of Pay and Allowances for U.S. Army Reserve (USAR)/National Guard Personnel, dated 9 January 1987
* documents related to conditions leading up to his discharge  

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. On 14 July 1964, he enlisted in the USAR.

3.  He submits a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 October 1984, stating he received contusions and lacerations as a result of being struck by an automobile while rendering assistance at the scene of a motor vehicle accident while enroute to the Lockwood (NY) USAR Center.  The form showed the injury was considered to have been incurred in the line of duty (LOD).

4.  He submits a DA Form 2173, dated 16 March 1986, stating he experienced a seizure while standing in a hallway of the Reserve Center.  He struck his head and sustained a 3-inch laceration.  He was transferred to a hospital on the advice of the attending physician and unit commander where initial treatment was obtained.  The form showed the injury was considered to have been incurred in the LOD.

5.  Orders 177-077, dated 10 July 1986, ordered him to active duty for training to attend 91C licensed practical nurse school effective 21 July 1986 for a period of 12 days.

6.  He submits a Champlain Valley Physicians Hospital Medical Center document which shows he was admitted to the hospital on 22 July 1986 and discharged on 24 July 1986.  He had been admitted after being found confused where his car had gone off the road.  The emergency room physical examination was unremarkable.  The diagnosis was for a follow up in the office in 3-4 months or earlier if symptoms or problems occurred.

7.  He submits a DA Form 2823 (Sworn Statement), dated 6 January 1987, in which he stated after leaving a classroom that was very hot on his way home he blacked out while driving his own private vehicle.  He lost control of the vehicle and hit 5 to 6 guide rails and crossed a side road and hit a tree head on.  He was informed by the trooper and doctor that he had a heat stroke and he was prescribed salt tablets.  He did not receive any injuries at the time.  He further stated that he feels all his seizures and strokes are caused from the accident in "Ellenburg" (13 October 1984) while on duty. 

8.  He submits a DD Form 261 (Report of Investigation), dated 6 January 1987, which shows he stated he was enroute home from his place of duty when he blacked out.  He claimed he had had seizures since he was involved in an accident in October 1984.  The incident was found to be in the LOD.

9.  A Wilcox U.S. Army Health Clinic letter, subject: Continuation of Pay and Allowances for USAR/National Guard Personnel, dated 9 January 1987, stated the applicant was incapacitated from performing normal military duties for the period 16 March 1986 to 15 January 1987.  It further indicates this was due to an injury he sustained on 16 March 1986 at the USAR Center.  It showed an LOD investigation was initiated on 16 March 1986.

10.  A Wilcox U.S. Army Health Clinic letter, subject: Continuation of Pay and Allowances for USAR/National Guard Personnel, dated 20 January 1987, stated the applicant was incapacitated from performing normal military duties for the period 15 January to 15 February 1987 due to an injury he sustained on 16 March 1986 at the USAR Center.  It shows his incapacitating condition as an "undetermined neurological condition."

11.  A Headquarters, 310th Field Hospital letter, subject: Ineligibility for Benefits, dated 18 June 1987, stated in view of the information contained in the 5th Endorsement from First Army, it was recommended that he seek guidance from the Judge Advocate Office at 8th Medical Brigade.  It further stated the letter would also serve as notification that the unit was taking action to have him separated under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations), paragraph 12-1.

12. He submits a Standard Form (SF) 513 (Medical Record – Consultation Sheet), initiated by Dr. G at the Fort Drum Medical Department Activity (MEDDAC), dated 13 July 1987, which stated a determination needed to be made -- is his seizure secondary to a motor vehicle accident in October 1987 [sic].  It further requested initiation of a Medical Evaluation Board (MEB) if the applicant was not retrainable.

13.  A Walter Reed Army Medical Center letter, subject: Entitlement to Pay and Allowances, dated 5 August 1987, stated the applicant was authorized pay and allowances due to medical authority having indicated he was unable to perform normal military duty from 18 July to 28 October 1987.

14.  A Walter Reed Army Medical Center letter, subject: Request for Statement of Service for Physical Disability Action, dated 12 August 1987, requested preparation of a statement of service stating that before final disposition could be made by Headquarters, Department of the Army, an official statement of service was required.

15.  On 2 October 1987, an MEB referred the applicant to a Physical Evaluation Board (PEB) for:
 
* seizure disorder, most likely etiology alcohol abuse/withdrawal
* elevated liver function tests, most likely etiology alcohol abuse
* polyneuropathy, most likely etiology alcohol abuse
* hyponatremia, unknown etiology
* psychiatric diagnosis of Axis I alcohol dependency and Axis II narcissistic and passive aggressive personality traits 

16.  The findings and recommendation of the MEB were approved.

17.  Though the form is void of a mark indicating whether he agreed or disagreed with the board's findings and recommendation, he does provide a copy of a memorandum addressed to the Deputy Commander for Clinical Services, Walter Reed Army Medical Center.  Therein, he stated he was appealing the results of the MEB held on 2 October 1987 because the MEB did not address the issue which was part of the medical consult of 13 July 1987 from Dr. G at Fort Drum MEDDAC which stated – "was the seizures problem secondary to the motor vehicle accident which occurred 13 Oct. 1987 [sic]."  He stated he enclosed the aforementioned medical consult; a newspaper article attesting to the date and surrounding pertinent factors of the accident; and an approved DA Form 2173, dated 13 October 1984.

18.  Headquarters, 310th Field Hospital, letters for each period listed below and addressed from the Commander to the First Sergeant stated the applicant had been granted authorized absences for the following periods in 1987; 
10-11 January, 7-8 February, 7-8 March, 21-22 March, 4-5 April, 16-17 May, 
6-7 June, 11-12 July, 19-20 September, 3-4 October, 7-8 November, 
5-6 December, and 9-10 January 1988.

19.  He submits a letter addressed to the Director, Patient Administration, 
ATTN: Physical Evaluation Board Liaison Officer, Walter Reed Army Medical Center, dated 1 November 1987, requesting that if it was determined he was unfit because of physical disability, he was applying for continuance on active duty.  He requested assignment to duties that he was able to perform within the limitations imposed by his physical disabilities. 
20.  The applicant submitted a memorandum to the Commander, Walter Reed Army Medical Center, dated 14 December 1987, stating he was appealing the findings of the PEB because he felt his present medical conditions were a result of his being involved in an automobile accident on 13 October 1984 which was in the LOD.  He further stated he had been informed several times that the medical bills for the hospital, doctors treatment, and prescriptions would be paid by the Army and this coming directly to him – for which he was not paying because he had no income at all.  He was also told by several personnel that he was in full military pay and allowances effective March 1986, following the first seizure, until present.  That had not happened and there had been no pay at all.  He was also told that he could not even attend weekend drills for pay.  Consequently he had lost everything, fulltime pay and retirement points and pay.

21.  His records contain a U.S. Army PEB, Walter Reed Army Medical Center, letter, dated 31 December 1987, addressed to the applicant.  It states the Washington PEB had received his letter of rebuttal, dated 14 December 1987, to his informal PEB held on 30 November 1987.  It stated that although he had presented no new objective evidence, his case was carefully reviewed.  Based upon that review, the PEB found no grounds for a change in its action in his case and reaffirmed its findings.  It further stated that the PEB couldn't address problems of pay or retirement.  Those questions should be answered through command channels.    

22.  Orders D9-10, issued by the U.S. Army Military Personnel Center, dated 14 January 1988, discharged the applicant from the USAR under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) in the rank of sergeant first class effective 4 February 1988.  The orders stated he was not entitled to severance pay. 

23.  An ARPC Form 249-2-E shows that over a 30-year period he accrued exactly 19 years of qualifying service for nonregular retirement purposes.

24.  The applicant submits the following list of issues related to his request:

* Why was the Wilcox U.S. Army Health Clinic letter, subject: Continuation of Pay and Allowances for USAR/National Guard Personnel, dated 9 January 1987, for the period 16 March to 15 January 1987 not published until 9 months after the LOD date of 16 March 1986?
* He was able to attend weekend drills and 2 weeks of active duty for training (ADT) for 12 days starting 21 July 1986 (orders attached)
* On his way home from ADT he had a blackout and motor vehicle accident (doctor's record attached)
* He reported for scheduled duty in August 1986 and was told to go home because he was on authorized absence because of continuation of pay and allowances from 16 March 1986
* He questions how he could be eligible to attend weekend drills and ADT from 16 March 1986 until 1 August 1986 then wasn't allowed to attend drills after his accident on his way home from ADT
* Attached is an ARPC Form 249-2-E showing points earned for retirement year 14 July 1985-14 July 1986 as 65 points and 29 points for retirement year 14 July 1986 to 14 July 1987
* Since his 20th year was 14 July 1986 to 14 July 1987 he should have been allowed to attend drill to earn his 20-year letter since he was allowed to attend ADT in July of 1986
* He also feels the medical review was delayed until after his 20th year had passed so he wouldn't get the retirement points to receive a 20-year letter for retirement

25.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.

26.  Army Regulation 635-40 chapter 4 contains guidance on processing through the Army PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

27.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting "retired pay" to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 describes qualifying service as service performed in an active status in a Reserve Component or in active Federal service.  After 30 June 1949, a Reserve member must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  


28.  Army Regulation 135-381 (Incapacitation of Reserve Component (RC) Soldiers) states for establishing fitness, an RC member will be determined to be unable to perform military duties if, under service procedures in Army Regulation 40-501 (Standards of Medical Fitness) the member would be determined to be medically unfit to perform his or her military duties.

	a.  This regulation further states a member authorized incapacitation pay under Title 37 U.S. Code Section 204 will not be allowed to attend inactive duty training (IDT) or to acquire retirement points for performing IDT.  A Soldier attending IDT and performing military duties may be evidence that they are not suffering from a disability that entitles them to incapacitation pay.

	b.  This regulation also states when incapacitation lasts for over a year, the case should be processed through the Disability Evaluation System for disability separation or retirement.

DISCUSSION AND CONCLUSIONS:

1.  His contentions/issues were carefully considered.  However, the Board is not an investigative agency.  As a result, these are generally outside the scope of the Board, the purpose of which is to correct Army records based on error or injustice.  

2.  The evidence of record shows the applicant suffered an injury on 16 March 1986 that led to the determination he was incapacitated from performing normal military duties thereafter, which prevented him from attending drills and/or receiving retirement points for drills during the contested period.  His records show he was evaluated by an MEB and PEB to determine whether he was fit for duty based on his rank and military specialty.  Though his informal PEB is not available for review, evidence shows he was determined to be unfit to perform normal military duties.  Therefore, based on the evidence, there would have been no basis to allow him to attend additional weekend drills (IDT) or other duty with an "unfit" determination simply for the purpose of attaining 20 qualifying years of service for nonregular retirement. 

3.  There is no evidence of error in regard to his PDES processing.  In the absence of evidence showing he was not properly discharged in accordance with regulatory policy, there appears to be no error or injustice in this case.  As such, there is an insufficient basis for granting the applicant's request.



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)                                         AR20120020672



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ABCMR Record of Proceedings (cont)                                         AR20120020672



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