IN THE CASE OF:  	  

		BOARD DATE:  22 October 2014	  

		DOCKET NUMBER:  AR20140000643 


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:

* issuance of a Notice of Eligibility for Retired Pay at Age 60 (15-Year Letter) (NOE) and placement on the retired list, effective 21 November 2011, his 60th birthday.
* in line of duty (ILD) determination 

2.  The applicant states he was assigned to the Retired Reserve on 19 May 2007 but his unit failed to request his NOE.  He feels that he stated clearly on his DA Form 4856 (Developmental Counseling Form) that he had an LD but it was not investigated as he was in training.  The commander acknowledges that his request was for medical retirement as early as 2 April 2007. 

3.  The applicant provides:

* request for orders
* leave and earnings printout
* notification of dismissal from a Basic Noncommissioned Officer Course (BNCOC)
* memorandum for record of phone notification by the applicant
* DA Form 1059 (Service School Academic Evaluation Report)
* three Memorial Hospital at Gulfport Radiology Reports, dated 8 February 2005
* DD Form 2807-1 (Report of Medical History), dated 21 November 2005
* DD Form 2808 (Report of Medical Examination), dated 21 November 2005
* ViroMed Laboratories, Inc. Human Immunodeficiency Virus test results
* Standard Form 507 (Clinical Record), dated 31 May 2006
* Standard Form 507, dated 6 July 2006
* DA Form 3349 (Physical Profile), dated 6 July 2006
* U.S. Army Physical Disability Agency (USAPDA) appeal denial memorandum
* DA Form 4856, dated 2 April 2007
* Headquarters, 108th Division (Institutional Training) Orders 07-110-00002, dated 20 April 2007
* VETSNET Compensation and Pension Award
* email requesting information on Active Duty Special Work tour
* policy for management of Reserve Component (RC) Soldiers on Active Duty for Operational Support and Full-Time National Guard Duty for Operational Support
* Department of Veterans Affairs (VA) rating decision  

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.  His record shows after having had prior service, on 26 February 2000 he enlisted in the U.S. Army Reserve (USAR).  

3.  He provides:

   a.  Multiple documents related to his dismissal from BNCOC for personal reasons as a result of a car wreck.  These include:  a dismissal notification memorandum, dated 8 January 2005; memorandum for record, dated 8 January 2005; and a DA Form 1059 for the period 4-5 December 2004 stating he was dismissed from BNCOC due to a car wreck preventing him from attending 
8-9 January 2005 inactive duty training (IDT).
   
   b.  Three Memorial Hospital at Gulfport Radiology Reports, dated 8 February 2005.  These reports contain magnetic resonance imaging (MRI) information related to his lumbar spine and right knee.
   
   c.  A DA Form 2807-1, dated 21 November 2005, showing the purpose of the medical examination was for retention in the USAR.
   
   d.  A Standard Form 507, dated 6 July 2006, showing a Physical Review Board completed its review process and found that the applicant did not meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) due to:  paragraph 3-39h, low back pain status post lumbar laminectomy; paragraph 3-41e, right knee pain status post right meniscus tear with arthroscopic repair in 2005; and paragraph 3-41e, right shoulder pain status post right rotator cuff repair.

4.  On 6 July 2006, he was issued a permanent physical profile for low back pain status post lumbar laminectomy, right knee pain status post right meniscus tear with arthroscopic repair in 2005, right shoulder pain status post right rotator cuff repair, early cardiomyopathy, and hypertension.

5.  A non-duty related PEB convened on 4 January 2007.  He was found unfit because his restrictive profile stemming from his low back pain, spinal stenosis, right knee pain, and right shoulder pain that did not allow him to perform two of the five Soldier functional activities.  On 16 January 2007, he non-concurred with the PEB recommendation and requested a formal hearing.

6.  He provides a U.S. Army PEB Memorandum, dated 18 January 2007.  It shows that after a careful review the PEB found his rebuttal to the 4 January 2007 PEB findings contained no new objective medical or performance evidence which would warrant a change to the original findings.  It stated in reaching that decision, the following specifics pertaining to his rebuttal were considered:  His claim that he was "injured while on drill duty" must be substantiated by an LD determination.  There was no LD determination in his case file.  Furthermore, his case was submitted to the PEB as a non-duty related case and the PEB can only make a determination of fit or unfit for non-duty related cases.

7.  On 14 February 2007, he concurred with the PEB findings and waived a formal hearing.  On 26 February 2007, the PEB findings that the applicant was unfit were approved.

8.  He provides a DA Form 4856, dated 2 April 2007, which shows he was counseled by his commander for the purpose of informing the applicant that on 4 January 2007 the PEB located at Fort Sam Houston, Texas found he did not meet medical standards due to several medical conditions:  lower back pain, spinal stenosis, right knee pain, and right shoulder pain.

   a.  The form further shows that according to the PEB his pain did not allow him to perform two of the five Soldier functional activities; therefore, he was unable to be retained in the USAR and must at that time be retired or honorably discharged.
   
   b.  His commander indicated the key points of discussion were his medical unfitness for continued military service and request for early retirement. 
   
   c.  The applicant indicated on the form that he disagreed with the information above.  He indicated that the statement was contingent with prejudice without advice of counsel and that his decision to opt for early retirement did not negate his informal claim for an investigation of an LD determination.
   
   d.  His commander then entered the comment "[Applicant] seems to understand the points discussed concerning his military career.  He understands that he is subject to discharge from the Army Reserve."  
   
9.  Headquarters, 108th Division (Institutional Training) Orders 07-110-00002, dated 20 April 2007, assigned the applicant to the Retired Reserve effective 19 May 2007.  These orders show the reason for his separation was "Medically Disqualified – Not Result of Own Misconduct."  These orders specify that he was authorized early retirement under Title 10, U.S. Code, Section 12731b (10 USC 12731b).

10.  His available evidence of record is void of any indication that his chain of command requested an LD determination for any injury or that he had an injury warranting an LD determination.

11.  The Integrated Web Services (IWS) system contains a commander's letter to the U.S. Army Human Resources Command (HRC), dated 12 September 2012, requesting the applicant be issued a 15-year NOE to collect retired pay at age 60.  The letter indicated a congressional response, DA Form 4187 (Personnel Action), Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points), request for military records, and discharge orders were enclosed with the letter.

	a.  Notes from the Retired Pay Chief, HRC entered in the IWS system at the time indicated the applicant had emailed the aforementioned documents but that it was not enough to support issuance of a 15-year NOE.  However, there is no indication of why these documents were insufficient.  The applicant was informed that he would probably need to petition this Board for relief. 

	b.  A summary of his retirement points shows he was born on 21 November 1951 and that he completed a total of 16 years of qualifying service for non-regular retirement purposes.

	c.  A response to his elected representative, dated 26 April 2012, states the law authorizing retired pay at age 60 (non-regular retired pay) based on service in the RC does not authorize this pay until all requirements have been fulfilled.  It further stated that the 108th Division did not request a 15-year NOE.  The applicant was not eligible to receive an age 60 retirement until all the proper documentation (DA Form 4187, DD Form 3349, MEB/PEB, and Commander's Letter) had been completed.  The response also indicated the 108th Division must send the necessary documentation to the RC Retirements office and request that a 15-year NOE be issued. 

12.  A VA Rating Decision provided by the applicant shows the VA granted him a 10-percent service-connected disability rating for residual, status post arthroscopy, right knee with history of arthritis and a 10-percent rating for residuals, status post laminectomy, L4-L5 (also claimed as spinal stenosis and low back pain).

13.  There is no available evidence showing the applicant elected transfer to the Retired Reserve or that his commanding officer recommended approval of such a request.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18.  

	a.  It contains the rules and policies for disability processing of RC Soldiers on active duty or on IDT.  It states an RC Soldier will be referred for medical processing through the Army PDES when a commander or other proper authority believes a Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  It further states the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.
	b.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several LD criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or IDT.

15.  Army Regulation 40-501, chapter 3, provides standards for medical retention.  Paragraph 9-12 states RC Soldiers with non-duty related medical conditions pending separation for failing to meet the medical retention standards are eligible to request referral to a physical evaluation board (PEB) for a determination of fitness.  The process was designed to give the Soldier with a non-duty related impairment the option of requesting a PEB solely for the purpose of fitness determination but not a determination of eligibility for disability benefits.  Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required.  This regulation further states that all RC Soldiers are responsible for providing the unit commander all medical documentation including civilian health records.  Civilian health records documenting a change which may impact their readiness status will be placed in the Soldier’s military health record.

16.  Army Regulation 600-8-4 (LD Policies, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  The unit commander will conduct an informal LD investigation when the circumstances warrant or require one.  This regulation provides standards and considerations used in determining LD status.  It states that LD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  It further states that the mere fact that the Soldier was in an "authorized status" (duty, pass, leave, and so forth) does not support a determination of "in LD" in and of itself.

17.  10 USC 12731b provides a special rule for members with physical disabilities not incurred ILD.

	a.  It states that in the case of a member of the Selected Reserve of an 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 the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes.  This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC.
	b.  Notification may not be made if the disability was the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned; or the disability was incurred during a period of unauthorized absence. 

18.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

19.  Army Reserve Command memorandum, dated 11 December 2003, provides instructions to subordinate commanders for issuance of a 15-year NOE.  It states that eligible Soldiers must request the memorandum through command channels to HRC, and certain information, to include the results of the PEB and a copy of the order reassigning the Soldier to the Retired Reserve, with the instructions therein that the Soldier is authorized early retirement under 10 USC 12731b.  It stated that upon review of the necessary documentation, HRC will issue to the Soldier an NOE (15-year Memorandum).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding an LD determination were carefully considered.  However, there is no evidentiary basis for granting this portion of his request.

2.  He has provided no details regarding why he feels he should have an LD determination and there is no available evidence of an incident or injury that appears to have warranted an LD determination.  Though his complete medical record is not available for review, the Board starts its consideration with a presumption of regularity, that what the USAR did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Absent evidence to the contrary, there is no basis for changing his military record to show he had an LD.

3.  A non-duty related PEB was convened and found him unfit for continued military service because his restrictive profile stemming from his low back pain, spinal stenosis, right knee pain, and right shoulder pain did not allow him to perform two of the five Soldier functional activities.  It is unclear whether he submitted a written election for discharge or transfer to the Retired Reserve for early retirement as a result of the PEB finding.  However, a DA Form 4856 indicated he opted for early retirement with transfer to the Retired Reserve for the reason of non-duty related disability.
4.  Orders assigning him to the Retired Reserve show the reason for his separation was "Medically Disqualified – Not Result of Own Misconduct."  These orders also specified that he was authorized early retirement under 10 USC 12731b.

5.  A review of his records shows he met the criteria for issuance of a 15-year NOE.

6.  Notwithstanding the denial of an NOE by the Retired Pay Chief, HRC and absent evidence to the contrary, it appears he should have been issued a 
15-year NOE showing he was eligible to apply for retired pay at age 60 and to place him on the retired list, effective 21 November 2011, his 60th birthday.

7.  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:

* showing he was eligible for retired pay
* showing he applied for retired pay at age 60 in a timely manner


* placing him on the retired list effective 21 November 2011 with entitlement to retired back pay as of that date

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 line of duty determination.  




      __________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)                                         AR20140000643



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000643



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1