IN THE CASE OF:	  

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20120022836 


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 records to show he was retired by reason of disability.

2.  The applicant states:

   a.  He served over 20 years in the U.S. Army Reserve (USAR) and he was discharged from the USAR due to being diagnosed with type 1 diabetes while he was serving on active duty.  He was not considered for a disability retirement.  He was sent to Wright-Patterson Air Force Base (AFB), OH, for a medical evaluation board (MEB).  

	b.  At the time of his discharge from the USAR he had 18 years, 1 month, and 15 days of service.  Since his discharge, he has continued to have declining health and is currently being treated in the Department of Veterans Affairs medical system.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty)
* an Army Reserve Personnel Center (ARPC) Form 249-2 (Chronological Statement of Retirement Points)
* three DD Forms 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* four letters
* a statement of service
* a medical narrative summary
* three orders 
* a discharge certificate

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 records show he enlisted in the USAR for a period of 6 years on 24 January 1979.  He entered initial active duty for training (ADT) on 2 February 1979.  He successfully completed training and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  He was honorably released from ADT on 5 May 1979 to the control of his USAR unit.  The DD Form 214 he was issued shows he completed 3 months and 4 days of creditable active service during this period. 

4.  He continued to serve in the USAR though several reenlistments and/or extensions.  On 27 September 1996, he was promoted to the rank/grade of specialist (SPC)/E-4.  On 4 September 1997, he reenlisted in the USAR for a period of 6 years.

5.  On 31 December 1997, his immediate commander recommended a DA Form 8028 (USAR Bar to Reenlistment Certificate) be placed against him for unprofessional conduct during a battalion inspection and for being disrespectful and insubordinate toward the chain of command on seven different occasions.  

6.  On 8 March 1998, the approving authority approved the Bar to Reenlistment and it was placed in his records.



7.  Orders H-04-001182, dated 14 April 2000, issued by ARPC, St. Louis, MO, authorized him to perform inactive duty training for 1 day without pay for the purpose of a fitness for duty evaluation (emphasis added) at the U.S. Air Force Medical Center (USAFMC), Wright-Patterson AFB, OH.

8.  The applicant provides a medical narrative summary, dated 25 May 2000, wherein the examining physician stated the applicant was seen in the Endocrinology Clinic, USAFMC, Wright-Patterson AFB, OH, on 19 May 2000 for an MEB.  The examining physician, in part, further stated:

	a.  The applicant had a diagnosis of type 1 diabetes.  He presented symptoms of hyperglycemia in May 1998 and was initially treated with oral medications that were not effective.  He was subsequently placed on insulin and had remained on insulin.  He checked his blood sugar only once and sometimes two times a day.

	b.  The applicant was presently not monitoring his sugar very well and clearly had poor glycemic control.  It was recommended that the applicant follow-up with his primary physician and be placed on multiple shots of insulin to achieve tight blood sugar control.

	c.  He had a chronic disease and the diabetes would not remit; therefore, the applicant would never be worldwide qualified.  Therefore, in accordance with Army Regulation 40-501 (Standards of Medical Fitness) he was presented to an MEB.

9.  The applicant’s records are void of orders discharging him from the USAR.  However, a review of the interactive Personnel Electronic Management System shows he was honorably discharged from the USAR on 15 September 2000 in the rank of SPC due to being medically disqualified.

10.  The applicant provides a certificate that shows he was honorably discharged from the USAR on 15 September 2000.

11.  An ARPC Form 249, dated 9 July 2013, shows that as of the retirement year ending 31 December 1999, the applicant had a total of 12 years of qualifying service for a nonregular retirement.   He also had 18 years, 1 month, and 
15 days of total service for longevity pay purposes. 

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states:

	a.  MEBs/physical evaluation boards (PEBs) are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.  

	b.  Under the laws governing the Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states Reserve component (RC) Soldiers with non-duty related (NDR) medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  The process is designed to give the Soldier with NDR impairments the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits.

14.  Department of Defense Instruction 1332.38, definition E-2.1.20, defines NDR impairments as "impairment of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation."  Members with NDR impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  

15.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, 
(3) served the last 8-years of his or her qualifying service as a RC Soldier.  The requirement to serve the last 8 years in a RC has since been amended to the last 6-years.

DISCUSSION AND CONCLUSIONS:

1.  It appears that in 2000 the USAR found the applicant did not meet medical retention standards due to his chronic diabetes, an NDR disease.  He was authorized to perform inactive duty training without pay for the purpose of a fitness for duty evaluation.  On 25 May 2000, he underwent an MEB examination and was determined not to be medically qualified for worldwide assignment due to his diabetes.  

2.  By regulatory requirement Soldiers who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness (this is not the PDES).  The fitness determination process is designed to give the Soldier with NDR impairments the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of a medical retirement or eligibility for disability benefits.  

3.  His records show he was honorably discharged from the USAR on 15 September 2000 by reason of being medically disqualified. 

4.  There is no evidence in his records and he has not provided any records that show he was diagnosed with diabetes while he was serving on active duty or entitled to basic pay.  However, even if this had been the case, he would not be eligible for a disability separation or retirement as it is likely diabetes would be determined to be a preexisting condition.  

5.  Although the applicant may have served in the USAR for 18 years, the evidence of record shows he had only 12 years of qualifying service for a non-regular retirement.  As such, he was correctly discharged from the USAR on 15 September 2000.

6.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20120022836



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ABCMR Record of Proceedings (cont)                                         AR20120022836



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