DOCKET NUMBER:  AR20130015881 


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 her honorable discharge be changed to a medical discharge or medical retirement.

2.  The applicant states she was diagnosed with type one diabetes in March 2000 and her unit was aware of her medical condition.  In 2002 she had a 
2-week assignment at Fort Jackson where she became ill from complications of diabetes and she had to report to sick call every day until she could receive orders to return home.  In 2003 her unit was deployed to Iraq and everyone went to Fort Stewart, GA for processing.  She was not allowed to go because she was on insulin and she would have been turned around and not allowed to deploy with the unit.  She was allowed to complete her enlistment and when her unit returned from Iraq she was given an honorable discharge.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 17 May 1997
* DA Form 3349 (Physical Profile), dated 23 February 2004
* a memorandum, dated 24 February 2004, from Headquarters, 81st Regional Readiness Command (RRC), Birmingham, AL
* Headquarters, 81st RRC Orders 05-089-00013, dated 30 March 2005
* medical records from Cobb Memorial Hospital, Royston, GA


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.  On 28 September 1996, she enlisted in the U.S. Army Reserve (USAR).  She completed a period of active duty from 3 January to 17 May 1997.  

3.  U.S. Army Reserve Command, Fort McPherson, GA Orders 03-287-00280, dated 14 October 2003, assigned her to the RRC, Trainees, Transients, Holdees and Students (TTHS) Account, effective 14 October 2003.

4.  She provided a DA Form 3349, dated 23 February 2004, placing her on permanent profile for diabetes mellitus.

	a.  Under "P" (physical capacity or stamina) of the physical profile she was assigned the numerical designator "4."  She was coded "E" and "F" from Table 
7-2 of Army Regulation 40-501 (Standards of Medical Fitness).
 
	b.  The profile indicated she needed a non-duty related Physical Evaluation Board (PEB).

5.  A memorandum, dated 24 February 2004, from Headquarters, 81st RRC to Commander TTHS stated the Command Surgeon had reviewed the applicant's medical records and determined her medical condition was medically unacceptable.  The memorandum stated that Soldiers who are medically disqualified and pending separation for non-duty related impairments may request a PEB solely for the purpose of fitness determination, and that Soldiers are not eligible for disability benefits for non-duty related impairments.

6.  The applicant acknowledged receipt of the notice to her regarding her medical disqualification and elected to request a PEB to review her medical records for a final determination of her medical fitness for retention.  There is no record of a PEB available for review.
7.  Headquarters, 81st RRC Orders 05-089-00013 dated 30 March 2005 discharged the applicant from the USAR effective 30 April 2005.  The authority is shown as Army Regulation 135-178 (Enlisted Administrative Separations) and the type of discharge is shown as honorable.

8.  The medical records submitted by the applicant show her continued treatment for diabetes mellitus.

9.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.

	a.  Paragraph 9-10 states normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve or discharged from the USAR.  They will be transferred to the Retired Reserve only if eligible and if they apply for it.

	b.  Paragraph 9-12 states Reserve component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation 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.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement or severance pay benefits:

	a.  The disability 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.

	b.  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.





DISCUSSION AND CONCLUSIONS:

1.  She contends she should be entitled to a medical discharge or a medical retirement based on her diabetes mellitus.  

2.  The 81st RRC Command Surgeon determined her medical condition was medically unacceptable and non-duty related.

3.  A Soldier with a non-duty related medical condition may request a PEB; however, the PEB would only determine fitness for duty.  That is, a Soldier requests such a PEB when he or she disagrees with the determination that he or she is not medically fit for retention.  

4.  In order to be processed through the PDES a disability 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.  There is no evidence the applicant's medical condition was incurred while entitled to basic pay or was aggravated in the performance of active duty or inactive duty for training.  

5.  In view of the above, she was properly processed for separation in accordance with USAR regulations and she is not entitled to a discharge with disability severance pay or 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)                                         AR20130015881



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ABCMR Record of Proceedings (cont)                                         AR20130015881



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