IN THE CASE OF:	  

		BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20120022326 


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 her records to show she was medically retired.

2.  She states:

	a.  Her discharge should reflect that she was medically retired from the Army as was agreed upon during the physical evaluation board (PEB) process.  She received orders for deployment in support of Operation Iraqi Freedom on 22 February 2002.  She was in excellent health and cleared for deployment.  She became ill while she was deployed and the illness became so disabling she had to be medically evacuated from the theater of operations.  While at the Walter Reed Army Medical Center (WRAMC), Washington, DC, she was treated for reactive hypoglycemia based on a prior history secondary to gynecological problems.  Her primary symptoms of pain, weakness, and lethargy went undiagnosed.

	b.  On 24 September 2003, a medical evaluation board (MEB) concluded that she should be referred to a PEB.  She was placed on a permanent physical profile which would end her career as a Soldier.  On 14 October 2003, she signed a DA Form 199 (PEB Proceedings) indicating she did not concur, demanding a formal hearing, and requesting counsel.  On 20 October 2003, she was notified that the formal hearing would be held on 16 December 2003 and she scheduled an appointment with her counsel for the day prior.  She was assigned counsel and discussed her case.  She was advised that she would be eligible for and receive a medical retirement.

	c.  On 15 December 2003, she met with her counsel at WRAMC and agreed with the informal PEB decision to be placed in early retirement due to her medical condition.  She received a letter from WRAMC signed by J____ M____ stating she was found unfit for duty and that her case was being forwarded for processing for retired pay.

	d.  On 17 December 2004, she received orders issued by Fort Bragg, NC, releasing her from active duty.  She was not aware that her DD Form 214 (Certificate of Release or Discharge from Active Duty) should have shown she was medically retired or that her release should have been from WRAMC and not her unit at Fort Bragg.  She also received orders, dated 15 and 16 June 2004, honorably discharging her and assigning her to the Retired Reserve.

	e.  It does not follow that she was in excellent health prior to deployment and working on finishing her military career.  The Army determined her unfit for continued duty based on her deployment and service.  It is only logical to expect the Army to medically retire her as she was promised.  Her health and career were both adversely affected.  She did not ask to be discharged and argued to be able to finish her career.  Her request was denied and thus she agreed to medical retirement.  She has found the Army did not file her medical retirement and she has now learned that her medical discharge and retirement should have been from active duty as she was serving on active duty at the time.  She requests that her records be corrected to show this.

	f.  She "was later diagnosed with fibromyalgia as a result of [her] deployment."  She has ongoing health issues which have negatively impacted both her military and civilian careers.  The misdiagnosis and handling of her treatment and care up to her discharge is a "malfeasance" to her service.  She was given a permanent physical profile indicating she was unfit for duty and non-deployable.  This was detrimental to her career which resulted in her premature discharge.  It is contradictory to render a member unfit for active duty and then not medically retire him or her when he or she had obviously been healthy and medically fit prior to deployment and had over 15 years of service.

3.  She provides:

* Order R223-02, dated 11 August 2003
* DA Form 3349 (Physical Profile), dated 29 September 2003
* DA Form 199, dated 10 October 2003
* memorandum, dated 20 October 2003, subject:  Formal PEB Hearing for [Applicant]
* DA Form 5890-R (Acknowledgment of Notification of Formal PEB Hearing), dated 21 October 2003
* DA Form 751 (Telephone or Verbal Conversation Record), dated 15 December 2003
* memorandum, undated, subject: Request for Early Qualification for Reserve Retired Pay, RE:  [Applicant]
* Orders R167-005, dated 15 June 2004
* Orders R168-002, dated 16 June 2004
* DD Form 214
* Page 2 of correspondence from the Department of Veterans Affairs (VA)
* U.S. Army Human Resources Command (formerly U.S. Army Reserve Personnel Command (ARPC)) Form 249-E (Chronological Statement of Retirement Points), dated 17 October 2012

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 17 May 1985, the applicant accepted appointment as a Reserve commissioned officer of the Army.  With the exception of a brief period of service in the Army National Guard, she served in the U.S. Army Reserve (USAR).

3.  The DD Form 214 she provides shows she entered active duty on 28 February 2003 in support of Operation Enduring Freedom and served in Kuwait from 24 March to 24 June 2003.

4.  Her complete service medical records are not available for review.

5.  She provides a DA Form 3349 approved on 24 September 2003 showing she received a permanent physical profile based on a diagnosis of reactive hypoglycemia.

6.  A DA Form 3947 (MEB Proceedings) shows an MEB diagnosed her with reactive hypoglycemia that was medically unacceptable.  The form shows the approximate date of origin was in 2003, the condition was incurred while entitled to base pay, and it had not existed prior to service (EPTS).  The MEB recommended her referral to a PEB.  The MEB's findings and recommendations were approved on 1 October 2003 and the applicant concurred with the findings and recommendation on 6 October 2003.

7.  A DA Form 199 shows an informal PEB convened on 10 October 2003.  The PEB found:

* her reactive hypoglycemia had first been noted in 1993
* she had recently been called to active duty and did not have 8 years of active duty
* her reactive hypoglycemia was an EPTS condition, meaning it existed prior to her current mobilization
* her condition had not been aggravated by service, but was the result of natural progression

8.  The PEB noted that EPTS conditions are not compensable under the Physical Disability Evaluation System (PDES).  The PEB recommended her separation from the service without disability benefits.

9.  On 14 October 2003, the applicant indicated she did not concur with the PEB findings and recommendation and demanded a formal hearing with a personal appearance.  She also requested regularly appointed counsel.

10.  She provides a DA Form 751, dated 15 December 2003, showing she withdrew her demand for a formal PEB hearing and agreed with the informal PEB decision.  A handwritten note on the form states she was eligible for early qualification for retired pay under the Temporary Special Retirement Qualification Authority and would be applying for such.

11.  On 17 December 2003, the informal PEB findings and recommendation were approved by the Secretary of the Army.

12.  On 17 December 2003, XVIII Airborne Corps and Fort Bragg, issued Orders 351-0325.  The orders released the applicant from active duty not by reason of physical disability effective 16 January 2004.

13.  The DD Form 214 she provides shows she was honorably released from active duty by reason of completion of required active service on 16 January 2004.  The form shows she completed 10 months and 19 days of net active service during this period for a total of 1 year, 11 months, and 7 days of active service.

14.  She provides the following orders issued by Headquarters, U.S. Army Special Operations Command, Fort Bragg:

	a.  Orders R167-005, dated 15 June 2004, show she was reassigned to the Retired Reserve effective 15 June 2004 by reason of "RETIRED RESERVE (MEDICAL)."

	b.  Orders R168-002, dated 16 June 2004, show she was honorably discharged from the USAR effective 16 June 2004.

15.  She provides page 2 of correspondence from the VA showing she was granted a 40-percent service-connected disability rating for fibromyalgia effective 17 December 2004.

16.  She provides an ARPC Form 249-E, dated 17 October 2012, showing she completed 15 years and 1 month of qualifying service for retired pay.

17.  Her transaction history in the Integrated Web Services shows she contacted the U.S. Army Human Resources Command on several occasions regarding issuance of notification of eligibility for retired pay at age 60 based on 15 years of qualifying service (15-year letter).  Her records do not contain a 15-year letter.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.

	a.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training.

		(2)  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

	b.  Appendix B (Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities) states hereditary, congenital, and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service-aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.

	c.  Soldiers eligible for disability retired pay include those with a disability rating of 30 percent or more.

19.  On 28 February 2005, the Deputy Commander, U.S. Army Physical Disability Agency, Washington, DC, issued a memorandum for PEB Presidents, subject:  Policy/Guidance Memorandum #3:  Enactment of 10 USC 1207a [Title 10, U.S. Code, section 1207a] and 10 USC 12731b [Title 10, U.S. Code, section 12731b] for Disabilities Existing Prior to Service (EPTS).  This memorandum updated a memorandum, dated 8 April 2002, same subject.

	a.  The memorandum states the term "EPTS" refers to impairments incurred before the Soldier entered active duty or incurred during a break in service.  For troop program unit and Individual Ready Reserve Soldiers, EPTS refers to disabilities incurred between periods of active duty and inactive duty for training.  An impairment incurred or aggravated in the line of duty during a previous active duty period is not an EPTS impairment.

	b.  Under Title 10, U.S. Code, section 1207a, a Soldier ordered to active duty for more than 30 days, whose disabilities were neither incurred nor permanently aggravated while entitled to basic pay, is entitled to disability retired or severance pay, as applicable, if the Soldier has more than 8 years of active service at the time of separation.

	c.  Per Title 10, U.S. Code, section 12731b, members of the Selected Reserve who no longer meet qualification for membership in the Selected Reserve solely because they are unfit due to a physical disability not incurred in the line of duty may transfer to the Retired Reserve if they have 15 qualifying years of service toward non-Regular retirement.

20.  Public Law 106-65, enacted 5 October 1999, amended Title 10, U.S. Code, chapter 1223 (Retired Pay for Non-Regular Service), by adding section 12731b (Special Rule for Members with Physical Disabilities Not Incurred in Line of Duty).  Section 12731b(a) states 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 may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he or she has completed at least 15 and less than 20 years of service.

21.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 6 prescribes the conditions under which a Soldier may request transfer to the Retired Reserve.  This chapter states, in part, eligible Soldiers must request transfer if they are medically disqualified, not as a result of their own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of her records to show she was medically retired.

2.  There is no documentary evidence indicating an error in the PEB's determination that her diagnosis of reactive hypoglycemia was an EPTS condition.  As a member of a Reserve Component serving on active duty, this meant the PEB determined the condition existed prior to her entry on active duty.  There is no evidence that the condition was incurred in the line of duty or aggravated by military service.  Accordingly, the PEB determined her condition was non-compensable and therefore she did not receive a disability rating and could not be "medically retired."

3.  Because her medical condition could not be rated, she was released upon completion of her PDES processing.  Any subsequent actions based on her medical condition were matters properly addressed by the USAR.  In effect, she completed her required active service which is properly documented on her DD Form 214.  There was no other basis for her release from active duty.  Therefore, there is no basis for correcting her DD Form 214 to show a different reason for her release from active duty.

4.  Notwithstanding the foregoing, it appears an error was made when she was discharged from the USAR.  The PEB, though it did not rate her condition, recommended her separation from the service.  When the recommendation was approved, she had completed more than 15 years of qualifying Reserve Component service for retired pay at age 60 and she indicated she wished to be considered for early qualification for retired pay.

5.  The proper course of action for a Soldier in this situation is to issue the Soldier a 15-year letter and transfer the Soldier to the Retired Reserve.  Orders transferred her to the Retired Reserve effective 15 June 2004.  The next day, orders were issued discharging her from the USAR.  The basis for issuance of the discharge orders is unclear.

6.  In this case, it would be appropriate to issue her a 15-year letter and revoke the orders discharging her from the USAR, thereby reinstating her in the Retired Reserve.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  ___X_____  GRANT 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:

* issuing her a 15-year letter
* revoking Headquarters, U.S. Army Special Operations Command, Orders R168-002, dated 16 June 2004

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 correction of her records to show she was medically retired.



      _____________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)                                         AR20120022326



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ABCMR Record of Proceedings (cont)                                         AR20120022326



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