BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20120022670 


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, correction of his record to show he completed 20 years of service qualifying for retired pay.  He also requests, in effect, correction of his record to show he was retired from the Texas Army National Guard (TXARNG) for disability.

2.  He states he should have been retired from the TXARNG for service-connected disability.  He kept on trying to serve his country, but, unknown to him at the time, he had post-traumatic stress disorder (PTSD), diabetes, and other service-connected problems.  He could not figure it all out.  The problems he had in the Army "have since been proven by VA [Department of Veterans Affairs] doctors."  He fell ill and was on oxygen, bedridden, and in a wheelchair for over 27 years.  He went blind in his left eye from a stroke.  He does get aid and assistance from the VA.  He has served his country since 1962 on the U.S.S. Crow, in the Army from 1964-1975, and in the TXARNG from 1983-1986.  He has service with other agencies before 1986.  

3.  He provides:

* letter, dated 24 October 2012, from the Chief, Retired Pay Branch, U.S. Army Human Resources Command (HRC)
* service personnel records  
* numerous documents and photographs related to his service in Vietnam and his post-service honors and achievements
* financial records
* VA medical records
* VA Decision Review Officer Decision
* correspondence from the VA
* driver's licenses
* correspondence and other documents related to his eligibility for various awards
* correspondence and other documents related to his application for retired pay
* National Archives Form 13038 (Certification of Military Service)

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's record shows he served in the U.S. Naval Reserve (USNR) from 26 April 1961 to 30 June 1964.  During his USNR service, he served on active duty from 21 May 1962 through 11 April 1964, a period of 1 year, 10 months, and 21 days.  

3.  On 1 July 1964, he enlisted in the Regular Army (RA), and he continued his RA service with immediate reenlistments on 1 July 1965, 18 February 1970, and 14 October 1970.  His record shows he had multiple overseas assignments during his RA service, including three tours of duty in Vietnam. 

4.  On 30 October 1974, a Medical Evaluation Board (MEB) found the applicant unfit based on two conditions incurred in the line of duty:

* "surgical post-op hemilaminectomy, L5, S1 on left"
* "intractable low back pain and left leg pain, unknown etiology"

The MEB recommended the applicant be presented to a Physical Evaluation Board (PEB).  The applicant indicated he did not desire to continue on active duty.  The MEB found he was not medically qualified for continuance on active duty and recommended he be processed for separation.  The MEB findings and recommendations were approved on 14 February 1975.

5.  On 3 March 1975, a PEB convened to consider the applicant's condition.  The PEB found him unfit for "Intervertebral disc syndrome, status post op hemilaminectomy, L5, S1.  Moderate recurring attacks."  The PEB recommended a 20 percent (%) disability rating and the applicant's separation from the service with severance pay.  

6.  On 7 March 1975, the applicant indicated he did not concur with the PEB findings and recommendation and demanded a formal hearing with personal appearance.

7.  On 24 March 1975, a formal PEB convened.  The formal PEB found the applicant unfit for "Intervertebral disc syndrome, status post-op hemilaminectomy, L5, S1.  Severe recurring attacks, with intermittent relief."  The formal PEB recommended a 40% disability rating and that the applicant be permanently retired from the service.

8.  A Report of Proceedings of the Army Physical Disability Appeal Board (APDAB) shows, on 22 May 1975, the APDAB found that the findings and recommendations of the PEB as modified by the Army Physical Review Council (PRC) were supported by the evidence, were correct in fact, and were in accordance with the applicable policies.  

9.  The record is silent on the matter of why the PRC modified the formal PEB findings and recommendations and what specific modifications were made.  However, a DD Form 214 shows the applicant was honorably discharged (vice being permanently retired) on 25 June 1975, by reason of physical disability with severance pay.  The DD Form 214 shows he had completed 12 years, 11 months, and 14 days of total active service and 1 year, 2 months, and 16 days of prior inactive service.  

10.  His record contains very few documents pertaining to his TXARNG service; however, he provides two National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service).  Both forms show he enlisted in the TXARNG on 23 September 1983 and was honorably discharged on 1 March 1989.  One form shows he completed 19 years, 7 months, and 9 days of total service for pay.  The other, which appears to be a reissued form, shows he completed 19 years, 7 months, and 11 days of total service for pay.  Both forms show the authority for his discharge was National Guard Regulation 600-200 (Enlisted Personnel Management System), paragraph 8-26g, and the reason was "other designated physical or mental conditions."  
11.  His record is void of documentation showing the physical or mental conditions that led to his discharge from the TXARNG.  

12.  His complete service medical records are not available for review.

13.  The record is void of documentation showing he incurred or aggravated a disabling condition while entitled to basic pay as a member of the TXARNG.

14.  On 2 October 1989, the Adjutant General of the State of Texas informed the applicant's Representative in Congress that the applicant needed to obtain an additional 2 years, 6 months, and 21 days of qualifying service to be eligible for retired pay at age 60.  The Adjutant General stated the applicant had 19 years, 7 months, and 9 days of qualifying service, but he needed at least 20 years, and the last 8 years must have been served as a member of an active Reserve Component.

15.  An NGB Form 23B (ARNG Retirement Points History Statement), dated 23 October 2012, shows he completed 19 years, 7 months, and 9 days of creditable service for retired pay.  

16.  He provides, in part:

* a letter from the Chief, Retired Pay Branch, U.S. Army Human Resources Command, dated 24 October 2012, informing him he had not completed sufficient qualifying service to receive retired pay at age 60
* a VA Decision Review Officer Decision, dated 7 February 2009, showing the following service-connected disability ratings –

* status post left hemilaminectomy at L5 with degenerative joint disease (60% from 28 December 1987)
* PTSD with adjustment disorder (10% from 13 June 2000, 30% from 17 October 2001, and 50% from 25 August 2006)
* incontinence due to prostate enlargement associated with status post left hemilaminectomy at L5 with degenerative joint disease (40% from 4 October 2000)
* coronary artery disease associated with diabetes (30% from 8 May 2001)
* diabetes (agent orange/diabetes)(20% from 8 May 2001)

* a letter from the VA, dated 7 July 2009, showing his service-connected evaluation was at the 100% rate effective 12 May 1988

17.  National Guard Regulation 600-200, paragraph 8-26g, in effect at the time of the applicant's discharge, provided for the discharge of individuals for designated physical or mental conditions approved by NGB. 

18.  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.  

	a.  It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several line-of-duty (LOD) criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or must have been the proximate cause of performing active duty or inactive duty training.  

	b.  Soldiers who are found unfit for conditions incurred in the line of duty while entitled to basic pay are permanently retired if their disability is rated at 30% or higher.  Soldiers with disability ratings of less than 30% are separated with severance pay.  

19.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not empowered by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

20.  Title 10, U.S. Code, Section 12731, provides that to be eligible for retired pay at age 60, a member of a Reserve Component must have completed a minimum of 20 qualifying years of service.  For members who completed the service requirement prior to 5 October 1994, the last 8 years of qualifying service must have been in a Reserve Component.  
21.  Title 10, U.S. Code, Section 12732, defines Reserve Component service qualifying for retirement as each 1-year period after 1 July 1949 in which the person has been credited with at least 50 points.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows no basis for correcting the applicant's record to show he completed 20 years of qualifying service for retired pay.  

	a.  His NGB Form 23B provided by the applicant shows his total service creditable for eligibility for retired pay at age 60 as 19 years, 7 months, and 9 days.  This does not meet the standard of 20 years of qualifying service.  

	b.  Further, the law requires that members completing the 20-year service requirement prior to 5 October 1994 must have completed the last 8 years of qualifying service in a Reserve Component.  At the time of his discharge from the TXARNG on 1 March 1989, he had completed less than 6 of the required 8 years of Reserve Component service.  

	c.  The Adjutant General of the State of Texas and the Chief, Retired Pay Branch, HRC have determined he is not eligible for retired pay.  The record shows their determinations were made in accordance with the applicable law.  

2.  The available records show no basis for correcting his record to show he was retired from the TXARNG for disability.

	a.  The applicant was discharged from the RA for disability with severance pay based on the modified recommendation of a PEB.  The record further shows a back condition led to his discharge for disability.  

	b.  To refer him to the PDES, the TXARNG would have had to have evidence that he had sustained or aggravated a physically-unfitting condition while he was entitled to basic pay.  There is no documentary evidence showing he sustained such a condition while serving in the TXARNG or that his pre-existing back condition was aggravated by service in the TXARNG.

	c.  It is noted that the VA granted him a 60% service-connected disability rating for his back condition with an effective date prior to his discharge from the TXARNG.  Prior to his enlistment in the TXARNG, his back condition had been addressed by the PDES and was the basis for his RA discharge.  Notwithstanding the effective date of his VA rating for his back condition, it would not have been cause for the TXARNG to refer him to the PDES unless it had been aggravated in the LOD while entitled to basic pay during his TXARNG service.  

	d.  It is further noted that the VA has granted him service-connected disability ratings for several other conditions.  The effective dates of these ratings are all well after he was discharged from the TXARNG.  While these conditions may have been present during his military service, there is no documentary evidence showing they were of such severity that they warranted referral to the PDES.

	e.  The available records do not show the "other designated physical or mental conditions" that were the basis for his discharge from the TXARNG.  In the absence of documentation showing otherwise, it must be presumed that his discharge from the TXARNG was accomplished in accordance with the laws and regulations then in effect and that his rights were fully protected throughout the discharge process.  

3.  In view of the foregoing, there is an insufficient basis upon which to grant the relief the applicant has requested.  

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)                                         AR20120022670





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ABCMR Record of Proceedings (cont)                                         AR20120022670



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