IN THE CASE OF:	  

		BOARD DATE:	    24 October 2013

		DOCKET NUMBER:  AR20130001993 


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 his honorable discharge from the Army National Guard (ARNG) to show he was medically discharged.

2.  The applicant states:

* he became an American with a disability when it was discovered he had myotonic dystrophy (chronic, slowly progressing, highly variable, inherited multisystemic disease) by genetic testing in 2004
* the discharge was unjust because the chain of command was not followed
* he never requested a discharge because he was awaiting a Military Occupational Specialty Medical Retention Board (MMRB)
* he took an oath to serve his country and was waiting for the board review

3.  The applicant provides:

* miscellaneous medical records
* photographs
* letter from a Member of Congress, dated 10 January 2013

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 was born on 30 November 1951.  He enlisted in the ARNG on 29 September 1986 and he trained as a combat engineer.

3.  He provides a DA Form 3349 (Physical Profile), dated 28 March 2004, which shows he was issued a permanent physical profile for myotonic dystrophy and indicates an MMRB was needed.

4.  His records contain documentation which shows he requested a 6-month extension in February 2005 because he was pending an MMRB to determine his eligibility to continue his military service.  He had over 18 years of military service.

5.  He provides a letter from his physician, dated 5 May 2005, who states:

* the applicant has been seen and followed in the neurology clinic since January 2004
* he was diagnosed with myotonic dystrophy in February 2004
* this disorder is a progressive disorder that involves weakness of the arms and legs
* the prognosis is usually poor due to the fact that it is a progressive disorder without any current treatment
* his current level of weakness has progressed to the point where he is not able to operate at even the light physical duty at this time
* he would be in no shape or condition to be able to perform his duties in the National Guard as he is at high risk for muscle fatigue as well as cardiac arrhythmias and/or abnormalities and heart failure which would preclude him from performing these duties
* at this time he is permanently and totally disabled indefinitely

6.  His request for a 6-month extension was approved on 13 April 2005 and his new expiration of term of service was established as 8 August 2005.

7.  The available records do not contain MMRB or disability proceedings.

8.  On 8 August 2005, he was honorably discharged from the ARNG under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26i, by reason of expiration of service obligation.  

9.  His Chronological Statement of Retirement Points, dated 19 December 2005, shows he had 18 years, 10 months, and 10 days of creditable service for retired pay.

10.  He provides a letter from the Assistant Inspector General (IG), Ohio ARNG, dated 18 April 2011 (should read 2012), who states:

	a.  In December 2011, the applicant mailed documents to that office demanding correction of his military record.  The IG office started preliminary analysis and began collecting information from the applicant, the unit involved, and various Ohio ARNG offices.

	b.  During the course of his inquiry, the Assistant IG found the applicant had voluntarily separated from the ARNG on 8 August 2005 with 18 years, 10 months, and 10 days of service and a reentry eligibility (RE) code of RE-1.

	c.  The unit attempted to assist the applicant with his retirement issue before and during this inquiry through several meetings, but found he was not eligible for retirement.  The Assistant IG and the unit could not corroborate the applicant's allegation that people in charge were falsifying military documents to ensure he would reach his expiration of term of service instead of undergoing an MMRB.

	d.  In January 2012, the applicant contacted his Member of Congress to request an inquiry on his behalf.

	e.  The applicant should have been scheduled for an MMRB after his 6-month extension was granted and after the MMRB he would have had his record reviewed by a physical evaluation board (PEB) to determine if he met medical retention standards.

	f.  To change the characterization of his discharge to medical, he should petition the Army Discharge Review Board.

	d.  Pending further communication from the applicant's Member of Congress, the applicant's case was closed without further action.



11.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

12.  Title 10, U.S. Code, Section 12731b(a) states that 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 proved with the notification required if he/she has completed at least 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically discharged for myotonic dystrophy rather than honorably discharged in August 2005.

2.  The evidence shows he was pending an MMRB in April 2005.  It appears an MMRB was scheduled after his 6-month extension was granted and his case should have been reviewed by a PEB following an MMRB to determine if he met medical retention standards.  However, the available records do not contain MMRB or disability proceedings.     

3.  Based on the evidence of record in this case, his case most likely would have resulted in a duty-related PEB and no disability based on a preexisting condition (adult onset muscular dystrophy).  Therefore, there is insufficient evidence on which to base granting his request for a medical discharge under Title 10, U.S. Code, chapter 61.

4.  However, since he was in the Selected Reserve when he was issued the permanent physical profile for myotonic dystrophy and he completed 18 years, 10 months, and 10 days of creditable service for non-regular retirement at age 60, it appears he would have been eligible for a 15-year letter in accordance with Title 10, U.S. Code, Section 12731b.   

5.  In view of the foregoing, and as he is now over age 60, it would be equitable to correct his records by showing he is eligible for a nonregular retirement at age 60.

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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:

     a.  showing the applicant was eligible to apply for retired pay at age 60, that he so applied prior to reaching age 60, and that his application was approved and appropriately processed in a timely manner; and

     b.  paying to the applicant all due retired pay retroactive to the date he turned age 60.

2.  The Board further determined that 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 a medical discharge under Title 10, U S Code, chapter 61.  




      _______ _ 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)                                         AR20130001993



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ABCMR Record of Proceedings (cont)                                         AR20130001993



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