BOARD DATE:	  19 December 2013

		DOCKET NUMBER:  AR20130008111 


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 records to show he was medically retired instead of being discharged from the U.S. Army Reserve (USAR) with a general discharge.  He also raises several other issues to include disability/medical processing, a bonus debt, and source of help.  

2.  The applicant states:

	a.  He requests assistance in having his current discharge status be changed from "general under honorable conditions" to a "medical discharge."  He was discharged after the main body of his unit deployed to Iraq.  He was supposed to deploy with his unit in May/June 2010.  Due to an SRP [Soldier Readiness Processing] in December 2009/January 2010 time frame, and a scouring of his medical records, he was supposed to go before a medical board for review of his asthma, which he was diagnosed with in 2003.  The 3rd Party Medical Company that performed the SRP made him non-deployable and he was immediately removed from the deployment roster.  The nurse also said she was recommending that he be sent to a medical board again, and that it would have dated back to 2003 and 2009.  When his unit deployed, he was attached to the Rear Detachment and then subsequently discharged for non-attendance of Battle Assemblies.

	b.  He performed a 28-day annual training (AT) at Fort Dix, NJ, returned to his unit, and volunteered to do another AT, at which time he was told he could not, that he was out of MUTA’s [Multiple Unit Training Assemblies], and he did not have to drill until September/October time frame.  During this time, he received no phone calls from anyone within the unit advising him he was being noted as a no-show, asked why he wasn’t attending drills when it was completely out of character to do so, nor was he sent to a medical review board as a result of his SRP.  Instead, he was discharged without any notice provided to him until his then fiancé and he contacted TRICARE who advised that he was no longer eligible for benefits.  It was absolutely never his intention to leave the unit unless the medical board discharged him out as medically necessary.  Additionally, while attached to the rear detachment, he had to drive 3 plus hours each way to attend Battle Assembly, and it was an extreme hardship on his family.  His wife was not working at the time and he was the sole provider for his family for months prior as well as after his daughter was born.  His wife had pre and post pregnancy health issues and he could not be away from home for long periods of time.  

	c.  Prior to attending Londonderry, NH, Rear Detachment, he still had a 
1 hour and 45 minute drive to Saco, ME, which then turned into 2.5 hour or
3 hours to Londonderry, NH.  Since being discharged from the unit he has received correspondence indicating that he is also responsible for full payment of his reenlistment bonus of $6,000.00 as the direct result of being discharged.  He requests that the Board review his records and assist him in changing his discharge to show he was medically discharged.  His unit provided him with some, not all, of his medical records, which were in what appears to be the medical/personnel folders.  In his review of these records, it appears that some of the medical records are missing, specifically the records from the SRP in 2009/2010 recommending that he be medically boarded. 

	d.  It is his understanding that his records were stored in Londonderry.  He has enclosed these partial records for review.  Alternatively, if the Board is unable to assist him, he requests that the Board put him in contact with the right agency.  Lastly, he would like to say that he has dedicated 22 years to the military.  He has proudly served and considered himself to be a "lifer."  It is unfathomable that he were to ever find himself in this situation.  In fact, this is the first time he has ever felt as though he was treated unfairly.  

3.  The applicant provides a telephone consultation sheet; page 3 of his 3-page DD Form 2808 (Report of Medical Examination); two temporary physical profiles; and a letter from the Department of Veterans Affairs (VA).

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on XX January 1970.  Having had prior service in the Regular Army (from August 1988 to August 1992), the applicant enlisted in the USAR for 6 years on 13 March 1998.  He was trained in and held military occupational specialty (MOS) 95B (now 31B (Military Police)).

2.  He was ordered to active duty in support of Operation Enduring Freedom and served on active duty between 1 October 2001 and 27 September 2002 and again between 17 January and 29 December 2003.

3.  On 4 November 2006, he executed a 6-year reenlistment in the USAR to be effective on 13 March 2007.  The expiration of his term of service (ETS) date was established as 12 March 2013.  In connection with this reenlistment, he completed: 

	a.  DA Form 5261-2-R (Selected Reserve Incentive Program–Reenlistment/ Extension Bonus Addendum) wherein he indicated that he was reenlisting/ extending for 6 years in MOS 31B in exchange for a $15,000 bonus.  He acknowledged he understood that his entitlement to this reenlistment/extension cash bonus would be terminated if he became an unsatisfactory participant.

	b.  DA Form 5261-4-R (Student Loan Repayment Program (SLRP) Addendum) wherein he agreed to serve his 6-year reenlistment/extension in MOS 31B and that Headquarters, Department of the Army had approved this MOS for a maximum of $10,000 in loan repayments.  He acknowledged that he understood entitlement to this reenlistment/extension incentive would be terminated if he became an unsatisfactory participant.

4.  Between 14 November and 20 December 2007, he underwent a periodic retention medical examination.  His service record shows: 

	a.  A Report on Functional Capacity Certificate completed in conjunction with the applicant's medical examination shows he answered in the negative to over 20 questions related to disqualifying or prohibiting factors in his physical ability and/or functional capacity.  In one question, he answered in the positive when asked "If you could use your inhaler beforehand, would your asthma still prevent you from taking (and passing) the 2-mile run event of the Army Physical Fitness Test (APFT)?"

	b.  On 19 December 2007, he was issued a permanent physical profile for "Asthma."  The profile directed him to use his medication and inhaler as directed. 

	c.  On 22 December 2007, the examining medical official found him qualified for service pending review by his command.  He assigned him a PULHES of
"2-1-1-1-2-1" and listed "asthma" as a disqualifying defect.  The final result of his retention physical examination is shown as "Service member is physically fit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness)." 

5.  In November 2008, he received an annual Noncommissioned Officer Evaluation Report (NCOER) for the rating period 30 November 2007 through 29 November 2008, for his duties as Squad Leader in MOS 31B, while assigned to the 94th Military Police Company, 302nd Combat Support Battalion, Fort Devens, MA.  His rater rated his performance as "Excellent/Successful" and "Fully Capable."  He passed the APFT and met the height and weight requirements.  His senior rater rated his overall performance and potential as "Successful" and "Superior."  

6.  In November 2009, he received an annual NCOER for the rating period 30 November 2008 through 29 November 2009, for his duties as Squad Leader in MOS 31B, while assigned to the 94th Military Police Company, 302nd Combat Support Battalion, Fort Devens, MA.  Again, his rater rated his performance as "Excellent/Successful" and "Fully Capable."  He passed the APFT and met the height and weight requirements.  His senior rater rated his overall performance and potential as "Successful" and "Superior."  

7.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains Orders          10-306-00050, issued by Headquarters, 99th Regional Support Command, Fort Dix, NJ, ordering the applicant's discharge, under honorable conditions (general), effective 9 November 2010, in accordance with Army Regulation 135-178 (Enlisted Administrative Separations).  

8.  On 6 December 2012, he petitioned the Army Discharge Review Board (ADRB) for a review of his discharge.  The ADRB determined in the absence of evidence to the contrary and in the absence of his separation packet, Government regularity must be presumed.  The ADRB found his discharge proper and denied his petition for an upgrade of his discharge.  

9.  An email, dated 21 May 2013, from the Defense Finance and Accounting Service, Indianapolis, IN, indicated the applicant's total debt was $6,202.67 with a current balance of $3,407.37, accruing interest and penalties.  The reason for the debt is the applicant's bonus (recoupment). 

10.  His service medical records are not available for review with this case.  Similarly, his separation physical examination is also not available for review.  Additionally, his service records do not contain:

* A DA Form 2173 (Statement of Medical Examination and Duty Status)
* A line of duty determination
* a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade
* a medical examination that warranted his entry into the Army Physical Disability Evaluation System (PDES)

11.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and USAR enlisted Soldiers for a variety of reasons.  The separation policies in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve in the Army on the basis of their conduct and their ability to meet required standards of duty performance and discipline and provide for the orderly administrative separation of enlisted Soldiers in a variety of circumstances.  Specific categories for separation include minor disciplinary infractions, a pattern of misconduct, and the commission of a serious offense.  The characterization of service is based upon the quality of the Soldier's service, including the reason for separation and is determined in accordance with standards of acceptable conduct and performance of duty.   

12.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The ABCMR is not an investigative agency.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

13.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-4 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:

* when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board
* receive a permanent medical profile, P3 or P4, and are referred by an MOS/Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages:  the medical evaluation board (MEB) and the physical evaluation board (PEB).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

14.  Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule of Rating Disabilities.  Paragraph 3-27 states asthma is a cause for referral to an MEB.  This includes reactive airway disease, exercise-induced bronchospasm, asthmatic bronchospasm, or asthmatic bronchitis within the criteria outlined here.  Asthma is a clinical syndrome characterized by cough, wheeze, or dyspnea and physiologic evidence of reversible airflow obstruction or airway hyperactivity that persists over a prolonged period of time (generally more than 6 to 12 months).  

	a.  Soldiers who are diagnosed as having asthma may be placed on a temporary profile under the "P" factor of the physical profile for up to 12 months trial of duty, when medically advisable.  If at the end of that period the Soldier is unable to perform all military training and duty as cited below, the Soldier will be referred to an MEB.  

	b.  Acute, self-limited, reversible airflow obstruction and airway hyperactivity can be caused by upper respiratory infections and inhalation of irritant gases or pollutants.  This should not be permanently diagnosed as asthma unless significant symptoms or airflow abnormalities persist for more than 12 months.

	c.  Chronic asthma is cause for a permanent P-3 or P-4 profile and MEB referral if it (1) results in repetitive hospitalizations, repetitive emergency room visits or excessive time lost from duty; (2) requires repetitive use of oral corticosteroids to enable the Soldier to perform all military training and duties; 
(3) results in inability to run outdoors at a pace that meets the standards for the timed 2-mile run despite medications (the P–3 for the inability to perform the run refers to the inability due to asthma and should not be confused with giving an L2 or L3 based on an underlying orthopedic condition that requires an alternate APFT; or (4) prevents the Soldier from wearing a protective mask.

DISCUSSION AND CONCLUSIONS:

1.  The applicant raises several issues including the characterization of his service, disability/medical processing, bonus debt, and source of help.  

2.  With respect to the character of service:
	a.  The applicant's service record is void of the facts and circumstances that led to his discharge.  However, his record contains a discharge order, issued by a competent authority ordering his discharge effective 9 November 2010 with an under honorable conditions (general) characterization of service.  In the absence of evidence to the contrary, it must be presumed that all requirements of law and regulation were met and the right of the applicant were presumably fully protected.  

	b.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The ABCMR is not an investigative agency.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Therefore, it must be presumed that the applicant's discharge was appropriate because the quality of his service does not appear to have been consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. 

3.  With respect to the recoupment of his bonus, again, the applicant's service record is void of the facts and circumstances that led to his discharge.  He contends he was discharged for missing Battle Assemblies.  This indicates he may have been discharged as an unsatisfactory participant.  But regardless, he committed to serving 6 years in the Selected Reserve and received a cash bonus in exchange.  He did not fulfill his contractual obligation.  It appears a debt was established based on the unserved portion of his reenlistment contract.  

4.  With respect to the medical discharge: 

	a.  Most of the applicant's medical records are not available for review with this case.  However, he contends he sustained a medical condition but does not provide any medical evidence to support his contention.  But even if he was found unfit for retention in the USAR by the Command Surgeon, he would been notified, counseled, advised, and presented with four options: (1) discharge,
(2) transfer to the Retired Reserve (if eligible), (3) a non-duty related PEB 
(NDR-PEB), or (4) presenting evidence of an unfitting condition that was incurred while on active duty and entitled to basic pay.

	b.  Referral to the Army PDES requires that a designation of "unfit for duty" be determined before an individual can be separated from the military because of an injury or medical condition.  Here, none of his available medical record or the selected records he provides show what condition(s) were unfitting. 

	c.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

	d.  Since the applicant’s service medical records are not available and since he fails to provide any medical documents that determined he was unfit for retention in the USAR for a condition that was incurred in line of duty while entitled to basic pay and that was found to have failed retention standards and rendered him unfit, there is insufficient evidence to grant the requested relief.

5.  As for the sources of help, the applicant is advised to contact his former unit in an effort to obtain his complete separation packet and service medical records.  Additionally, there are several organizations throughout the country that assist veterans in submitting a request for correction of their military records.  Finally, the applicant has the option to seek relief in a court of appropriate jurisdiction.

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)                                         AR20130008111



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ABCMR Record of Proceedings (cont)                                         AR20130008111



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