BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130004266 


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 military records to show he was retired due to physical disability.

2.  The applicant states he went through a medical review board at Fort Knox, KY and item 23 (Type of Separation) should read medical discharge [sic].  He needs this changed in order to receive Army retiree benefits.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders Number 03-337-00360, dated 3 December 2003
* Orders Number 022-26, dated 22 January 2004
* Orders Number A-05-404905, dated 28 May 2004
* Orders Number 159-14, dated 8 June 2004
* DA Form 4187 (Personnel Action), dated 7 June 2004
* Orders Number 216-0159, dated 3 August 2004
* Physical Disability Information Report, completed 14 July 2004
* a letter of support, dated 20 December 2011
* a letter, dated 30 December 2011

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.  Having had prior service in the Regular Army, the applicant enlisted in the U.S. Army Reserve (USAR) on 28 January 1998.  He was ordered to active duty on 7 December 2003 in support of Operation Iraqi Freedom (OIF).

3.  His medical records are not available for review but his personnel records contain a Narrative Summary, dated 19 February 2004.  This document shows the applicant had a long-standing decade-old diagnosis of polycystic kidney disease.  The applicant claimed that he was first diagnosed with kidney disease in January 1991.

4.  The applicant was diagnosed with heel spurs, hypertension, gastroesophageal reflux disease, and a hiatal hernia which all met retention standards.  However, the military physician opined that the applicant's polycystic disease did not meet retention standards according to Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 3-17f(3) and recommended his case be adjudicated by a Physical Evaluation Board (PEB).

5.  On 4 March 2004, a Medical Evaluation Board (MEB) found that all his medical conditions existed prior to service (EPTS) and they were not caused by or aggravated by active service.  The board recommended his case be referred to a PEB.

6.  On 5 March 2004, he was notified of the preliminary findings of the MEB and he indicated that he did not desire to continue on active duty.  However, he disagreed with the board's findings and recommendations.  

7.  After considering the applicant's appeal the approving authority confirmed the MEB original findings and recommendation on 11 March 2004. 

8.  A DA Form 199, dated 4 May 2004, reports that on that date, a PEB convened at Fort Lewis, WA to consider the applicant’s case.  The PEB:

	a.  Determined the applicant's long-standing, polycystic kidney disease was considered a congenital/hereditary disorder with evidence of moderate renal failure.  There was no evidence of permanent service aggravation.  This medical condition made him medically unfit to perform the duties required of a Soldier of his rank and primary specialty.  The unfitting condition was found to be not service incurred or permanently aggravated.

	b.  Informed the applicant that his military records indicated that, in accordance with Title 10, U.S. Code, section 12731b he could be eligible to apply for the USAR/Army National Guard (ARNG) Early Qualification for Retired Pay Program for members of the Selected Reserve in lieu of separation for disability.  The applicant was strongly encouraged to consider requesting termination of disability processing so he could submit an application for this program through Reserve Component/ National Guard channels.

	c.  Indicated the applicant was physically unfit and recommended that he be separated from the service without disability benefits.

9.  In accordance with Orders Number 216-0159, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 3 August 2004, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4) by reason of disability, EPTS, PEB.

10.  The applicant’s ARPC Form 249-E (Chronological Statement of Retirement Points), dated 13 November 2013, shows he completed a total of 16 years, 
3 months, and 25 days of qualifying service toward non-regular retirement.

11.  He provided:

a. Military orders which show he was ordered to active duty in support of OIF 
on 7 December 2003 and was subsequently attached to the Medical Holding Company (MHC), Ireland Army Community Hospital, Fort Knox, KY to complete further medical treatment.  He remained in the MHC until he was discharged on  3 August 2004.

   b.  A letter of support that attests to the applicant's credibility and a letter from the local ID Card official which states that all available records indicate the applicant was discharged; therefore, he could not be issued a retirement ID card.

   c.  A Physical Disability Information Report which shows the applicant was separated on 14 August 2004.  This document does not show the applicant was retired but does show his separation code was "JFM."
12.  Army Regulation 635-40 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.

13.  Chapter 4 of Army Regulation 635-40 provides for the separation of enlisted Soldiers found to be unfit by a PEB due to a condition which was EPTS or occurred in the line of duty, not due to the Soldier's misconduct.  Paragraph 
4-24b(4) provides for separation for physical disability without severance pay.

14.  Army Regulation 635-40 also states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they EPTS.

15.  Title 10, U.S. Code, section 12731b states, in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, correction of his military records to show he was retired due to physical disability.

2.  The evidence of record shows that a PEB reviewed the medical evidence and concluded there was sufficient evidence to substantiate that his unfitting condition was an EPTS condition.  The PEB found him unfit and recommended separation from the Army without disability benefits.  He concurred and waived a formal hearing of his case.

3.  His narrative reason for separation was assigned based on separation under the provisions of paragraph 4-24b(4) due to a condition of polycystic kidney disease, long standing which was an EPTS condition.  Therefore, the only valid narrative reason for separation permitted under paragraph 4-24b(4) is "disability, EPTS."

4.  The record further shows that during the processing of his PEB the applicant was encouraged to submit an application for the USAR/ARNG Early Qualification for Retired Pay Program in lieu of separation for disability.  A review of his records shows he was eligible for this program.

5.  By law, a member of the Selected Reserve of a RC who is medically disqualified for continued service in a RC may be considered as having met the service requirement and may be issued a notification if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes. 

6.  The evidence in this case confirms the applicant completed a total of 
16 years, 3 months, and 25 days of qualifying service for non-regular retirement prior to his medical discharge on 3 August 2004.  

7.  As a matter of equity, the applicant's records should be corrected to show he was transferred to the Retired Reserve effective 3 August 2004 with authorization for early retirement under Title 10, U.S. Code, section 12731b.  The applicant should be issued a notification of eligibility for retired pay at age 60 (15-year letter) and provided an opportunity to enroll in the RC Survivor Benefit Plan.

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.  revoking Orders Number 216-0159, dated 3 August 2004;


	b.  publishing orders releasing him from active duty (orders Format 523) and transferring him to the USAR Retired Reserve effective 3 August 2004; and

	c.  amending his DD Form 214 to show in:

* item 18 ( Remarks) - "The Soldier has been separated by reason of physical disability and has selected Reserve Retirement in-Lieu of separation for disability:  No severance authorized"
* item 23 ( Type of Separation) - Released from Active Duty
* item 24 (Character of Service) - Honorable
* item 25 ( Separation Authority) – Army Regulation 635-40, paragraph 
4-24b(5)
* item 26 (Separation Code) - MFR
* item 28 ( Narrative Reason for Separation) - Disability, Other

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 changing the narrative reason for separation to a medical retirement.




      _______ _   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)                                         AR20130004266



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ABCMR Record of Proceedings (cont)                                         AR20130004266



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