IN THE CASE OF:	

		BOARD DATE:  16 January 2014  

		DOCKET NUMBER:  AR20130004098 


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 his retirement due to completion of 20 or more years of qualifying service be changed to a medical retirement due to physical disability not incurred as a result of his own misconduct.

2.  The applicant states his orders indicate he was medically disqualified "and needs to be more specific in nature that I was medically retired for I had twenty-nine years of good service and because I was medically discharged to the Retired Reserve."  He also states there was obviously an error on the Army's part that resulted in his orders stating he is medically unfit due to no fault of his own and if the Army felt they needed to breach his contract because of this incident it should have been identified properly as medically retired.

3.  He provides 18 pages of documents extracted from his military medical record and the orders that assigned him to the Retired Reserve.

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 military records show he was born on 28 August 1955.  Following periods of enlisted service in the U.S. Air Force Reserve and the U.S. Air Force, the applicant enlisted in the U.S. Army Reserve (USAR) on
25 September 1995.  He continued to serve in the USAR and advanced to the rank/pay grade of master sergeant/E-8.

3.  His record contains a letter from the USAR Personnel Command (AR-PERSCOM), St. Louis, MO, dated 16 February 2000, wherein the Director, Personnel Actions and Services notified the applicant that he had completed the required years of service to be eligible for retired pay at age 60 (20-Year Letter).  

4.  On 5 August 2000, the applicant was issued a DA Form 3349 (Physical Profile) assigning him a permanent level-3 medical hearing profile based upon a diagnosis of hearing loss.

5.  The applicant provides:

	a.  A DA Form 5181-R (Screening Note of Acute Medical Care), dated 4 May 2003, which shows he sought medical treatment for a sore throat, hoarseness, cough, congestion, and runny nose.  He was diagnosed with having a cold virus and prescribed some over-the-counter medications for treatment.

	b.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated August 2003, which shows he sought medical treatment for pain and swelling in his right foot.  He was diagnosed with arthritis in his right great toe, gout in his right foot, and bilateral plantar fasciitis and prescribed additional medication for treatment.

	c.  A DA Form 3349, dated 9 June 2003, which shows he was assigned a temporary (30 day) level-3 lower extremity profile based upon a diagnosis of gout.

	d.  A DA Form 3349, dated 7 January 2004, which shows he was assigned a permanent level-3 physical capacity or stamina profile based upon a diagnosis of Hepatitis C.  He was prescribed additional medication and it was noted that he should not be assigned to overseas locations where definitive medical care was not available.  It was also noted that his condition of chronic Hepatitis required referral to a Physical Evaluation Board (PEB) in accordance with the provisions of Army Regulation 40-501 (Standards of Medical Fitness).

	e.  A DA Form 4700 (Medical Record - Supplemental Medical Data), dated 7 May 2004, which shows he sought medical treatment for pain and swelling in his right great toe and chest pain.  As a result, the prescription for his gout medication was modified and he was referred to the Cardiology Department.

	f.  The reverse side of a DA Form 7349 (Initial Medical Review - Annual Medical Certificate), dated 7 January 2005, which shows a physician opined that he was unfit for continued service in the USAR and required a non-duty PEB to evaluate his conditions of Hepatitis C and hearing loss.

6.  The applicant's record contains a memorandum rendered on behalf of the Command Surgeon, 81st Regional Readiness Command (RRC), Birmingham, AL on 20 January 2005 in order to inform the Commander, 81st RRC that a review of the applicant's medical records indicated he did not meet the retention requirements of Army Regulation 40-501 as a result of his diagnoses of chronic Hepatitis and hearing loss.  Soldiers who are medically disqualified and pending separation for non-duty related impairments may request a PEB solely for the purpose of fitness determination.  Soldiers are not eligible for disability benefits for non-duty related impairments.  The commander was instructed to notify the applicant, by certified mail or in person, of his medical unfitness for retention and advised that the Soldier must return the enclosed option selection memorandum through his unit to the Command Surgeon within 30 days.  If the Soldier requested an informal PEB, the unit must ensure the enclosed Non-Duty PEB checklist and required documents were completed and went to the Command Surgeon within 45 days.

	a.  On the same date, the Headquarters Commandant, 81st RRC rendered a memorandum informing the applicant of the aforementioned information and requirements.

	b.  The applicant acknowledged receipt of the notice regarding his medical disqualification and the options available to him.  He requested an informal PEB to review his medical records for a final determination of his medical fitness for retention.  

7.  The applicant provides:

	a.  A DA Forms 4700, dated 5 February and 6 March 2005, which show he sought treatment for recurring gout.  As a result, his medication dosage was modified and he was referred to a nutritionist for diet counseling.

	b.  A DA Form 3349, dated 6 March 2005, which shows he was assigned a temporary (60 day) profile based upon a diagnosis of gout.  He was advised to wear soft shoes at all times and to avoid running, jumping, and marching.

	c.  An unsigned DA Form 3349, dated 30 March 2005, which shows he was assigned a permanent level-3 physical capacity or stamina, level-2 lower extremity, and level-3 hearing profiles based upon diagnoses of hypertension, Hepatitis C, gout, hearing loss, and anemia secondary to chemotherapy for Hepatitis C.

	d.  A DA Form 3349, initiated on 5 April 2005, which shows he was assigned permanent level-3 physical capacity or stamina, lower extremity, and hearing profiles based upon diagnoses of hypertension, Hepatitis C, severe anemia, gout, and hearing loss.  It was also noted that his conditions did not meet retention standards and required referral to a PEB in accordance with the provisions of Army Regulation 40-501.

   e.  A DD Form 689 (Individual Sick Slip), dated 6 April 2005, which shows he sought medical treatment his recurring gout.  As a result he was advised to wear soft shoes at all times.

8.  On 15 December 2005, the Personnel Manager, U.S. Army PEB, Fort Sam Houston, TX, rendered a memorandum informing the applicant that the PEB had completed its fitness for duty evaluation of his case as annotated on the enclosed DA Form 199 and advised him that he had 10 days from receipt of this memorandum to return the enclosed election form.  He was advised that upon receipt of his election form by this office, or his failure to respond within the 
10-day period, his case would be forwarded to the U.S. Army Physical Disability Agency (USAPDA), Walter Reed Army Medical Center, Washington, DC, for final processing.  

9.  He was also advised that the USAPDA had final approval authority and would notify him and his unit of its decision in writing.  The applicant was advised of his rights to either accept or refute the PEB's findings and recommendation.  He was advised to review all entries on the DA Form 199, to obtain advice from the USAPDA prior to making an election if there was anything he did not understand, make an election by checking (initialing) item 13 (Election of Soldier) of the DA Form 199 and then sign and date the election form.  He was instructed to keep a copy of the completed form in his personal files and to mail the original and other copies back to the PEB for it to arrive within 10 days of his receipt of the DA Form 199.

10.  His record also contains a DA Form 199 which shows that on 14 December 2005 an informal PEB determined he was physically unfit because his physical profile for Hepatitis C, anemia, gout and hearing loss permitted no functional activities and no Army Physical Fitness Test (APFT) aerobic event.  The PEB noted that although the applicant was not entitled to disability separation benefits, as a Soldier who may have at least 20 qualifying years for Reserve retirement he had the option to transfer to the Retired Reserve and receive Reserve retired pay at the age of 60.  His case was adjudicated under the provisions of Department of Defense (DoD) Directive 1332.18, paragraph 3.5 and DoD Instruction (DoDI) 1332.38, Part II, paragraph E3.P2.3.  The PEB advised the applicant that a member of an armed force may not be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury that he/she has.  The PEB recommended that the applicant's disposition be referred for case disposition under Reserve Components (RC) regulations.  Item 13 of the DA Form 199 does not show the applicant made an election by entering his initials or signature on the form. 

11.  On 19 January 2006, the President, U.S. Army PEB, Fort Sam Houston, TX, rendered a memorandum informing the Commander, USAPDA that the applicant had received the findings and recommendations of the informal board dated 14 December 2005 on 29 December 2005 (as verified by a U.S. Postal Service tracking receipt), but had failed to make an election.  Since he had failed to make an election within the prescribed time limits the case was forwarded to the USAPDA for further processing in accordance with paragraph 4-20c(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

12.  On 31 January 2006, the Chief, Operations Division, USAPDA rendered a memorandum informing the Commander, 81st RRC that the PEB had determined the applicant was unfit for duty.  The applicant should be provided the DD Form 199 and advised of the final PEB determination.

13.  On 3 May 2006, Headquarters, 81st RRC published Orders 06-123-00046, reassigning him from the USAR Trainees, Transients, Holdees, and Students  Account to the Retired Reserve effective 3 June 2006 based upon his completion of 20 or more years of qualifying service for receipt of Retired Pay at age 60.

14.  His Chronological Statement of Retirement Points shows he completed 29 years, 1 month, and 2 days of qualifying service for retired pay at age 60.  

15.  Army Regulation 40-501 governs medical fitness standards for retention and separation, including retirement.  Paragraph 9-12 (Request for PEB evaluation) states that RC Soldiers with non-duty related 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.  Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities.  Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USAR Command RSC or the HRC Command Surgeon's office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.

16.  Army Regulation 40-501, paragraph 10-25 (Not in the Line of Duty (NILOD)), states Department of Defense Instruction 1332.38 states that members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  Further explanation is available in Total Army Personnel Directorate-Policy Memorandum Number 4, Processing RC Non-Duty Related Cases.  This policy memorandum outlines the procedures and requirements for processing boards on RC Soldiers with non-duty related impairments that are pending separation for medical disqualification.  Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier.  The Soldier will have a completed LOD or memo that notifies him/her of non-duty related findings (NILOD).  The Soldier may not challenge the PEB findings in person.

17.  Army Regulation 40-501, paragraph 10-25a(2), states the Military Personnel Office is responsible for notifying the Soldier, in writing, that his/her injury or illness is NILOD and that he/she is pending separation for a medical disqualifying condition.  The notification will also advise the Soldier that he/she has the right to prepare a Non-Duty PEB packet for a fitness determination.

18.  Army Regulation 635-40 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.  Under the laws governing the Army PDES, in order to be eligible to receive retirement and severance pay benefits a Soldier's unfitting disabilities 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 training (IDT).  Soldiers who are unfit by reason of physical disability neither incurred nor aggravated during any period of service while entitled to basic pay, or as the proximate result of performing active duty or IDT, but which effects duty performance, will be separated for physical disability without entitlement to benefits.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to amend his retirement due to completion of 20 or more years of qualifying service to a medical retirement due to physical disability was carefully considered.

2.  The fact that the applicant suffered from non-duty related conditions is acknowledged.  However, DoD Instruction 1332.38 states that RC members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  

3.  He was notified by a memorandum of his medical disqualification and was informed of his right to choose which option he would like to pursue in order to properly adjudicate his medical fitness.  He requested referral to a non-duty PEB for a determination of medical fitness.  By requesting referral to a non-duty PEB he was basically contending that he was fit for duty.

4.  He was evaluated by an informal PEB as a non-duty related case and was determined to be physically unfit because of his physical profile for Hepatitis C, anemia, gout, and hearing loss permitted no functional activities and no APFT aerobic event.  The PEB noted that although the applicant was not entitled to disability separation benefits, as a Soldier with at least 20 qualifying years for Reserve retirement, he had the option to transfer to the Retired Reserve and receive Reserve retired pay at the age of 60.

5.  The applicant was afforded an opportunity to refute the findings and recommendation of the PEB, but failed to do so within the established time limit.  

6.  As a result, he was assigned to the Retired Reserve effective 3 June 2006 based upon his completion of over 29 years of qualifying service for receipt of Retired pay at age 60.

7.  The applicant provided no evidence which shows his medical conditions were incurred while entitled to basic pay or that separation processing was in error or unjust or that his conditions were improperly evaluated.  Therefore, his retirement was proper and correct at the time and there is no basis to change his retirement to a medical retirement.






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)                                         AR20130004098



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004098



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1