IN THE CASE OF:  	  

		BOARD DATE:  18 November 2014	  

		DOCKET NUMBER:  AR20140000666 


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 reconsideration of his previous application for issuance of a 15-Year Letter and to be granted non-regular retirement benefits.  He also requests assistance with preparing his appeal to the Department of Veterans Affairs (VA) Board of Veterans' Appeals (BVA).

2.  The applicant states, in effect, that he was denied retirement and discharged from the U.S. Army Reserve (USAR) due to an injury he sustained which rendered him unfit for continued service because of physical disability.  He injured his left knee on 8 March 2006 while serving on active duty and taking an Army Physical Fitness Test (APFT).  No X-rays or magnetic resonance images (MRI) were taken of his knee while serving on active duty.  Prior to this injury he was an Individual Mobilization Augmentation (IMA) Soldier assigned to a specific position in an active Army unit and as a result of the injury he was unable to go back on active duty.  When he notified his leaders of his medical condition he should have been referred to the Physical Disability Evaluation System (PDES) and a physical evaluation should have been conducted under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He has read the Board's proceeding and decision, dated 12 June 2013, and contends an injustice has been imposed upon him and his family because the leadership at the U.S. Army Human Resources Command (HRC) failed to properly administer Public Law 106-65 pertaining to 15-retirements and Army Regulation 635-40 pertaining to evaluation of Soldiers who may be unfit to perform their military duties because of physical disability.

3.  The applicant states the he does not believe he received the proper credit for the schools and training he completed during his service in support of Operation Enduring Freedom and has provided documentation for the courses which may have been overlooked.  On 12 November 2008, he received orders stating he would be promoted to the rank/grade of sergeant first class (SFC)/E-7.  On 23 December 2008, he received orders revoking his promotion orders and rescinding his promotion under the authority of Army Regulation 600-8-19 (Enlisted Promotions).  He was told the basis for this action was the fact that he had not taken a current APFT.  He told people that due to his left knee injury, he is unable to continue his Army career.

4.  Following his discharge from active duty, he sought medical treatment for his left knee from doctors at the Premier Orthopedics Center and a VA medical center.  As of this date, he has New York State disability license plates on his vehicle, he can no longer work as a Law Enforcement Officer, he has difficulty walking; and due to these facts, he has filed for Social Security benefits.  His physicians have informed him that it is just a matter of time before he will need a total knee replacement.

5.  The applicant provides:

* a DA Form 705 (APFT Scorecard)
* two DD Forms 689 (Individual Sick Slip)
* a DA Form 3349 (Physical Profile)
* a DA Form 2173 (Statement of Medical Examination and Duty Status)
* six certificates of Training/Completion/Graduation
* two orders
* a Statement of the Case rendered by the VA

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120017488, on 11 June 2013.

2.  The applicant provides new evidence in the form of a DA Form 705, two DD Forms 689, a DA Form 3349, and a DA Form 2173 which were not previously considered and therefore warrant reconsideration by the Board.

3.  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.  This regulation states the ABCMR will review all applications that are properly before them to determine the existence of error or injustice and then direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record.  In view of the foregoing, the applicant's request for assistance with preparing an appeal to a Rating Decision rendered by the VA does not fall within the purview of this Board; therefore, it will not be discussed any further in these proceedings.  The applicant's appeal of the VA Rating Decision should be filed directly to the BVA in accordance with the written guidance that he was provided by the VA on 3 January 2014.

4.  The applicant's record shows that he was born in January 1952 and enlisted in the USAR on 11 September 1972 and served until he enlisted in the Regular Army on 2 October 1974.  He served in the Regular Army until 21 October 1977 when he was transferred back to the USAR.  He was discharged from the USAR on 10 September 1978. 

5.  On 7 July 1979, the applicant enlisted in the Army National Guard (ARNG)

6.  The applicant was ordered to active duty from an IMA status in support of Operation Enduring Freedom on 16 October 2005 for a period not to exceed 365 days.

7.  The applicant provides:

	a.  a DA Form 705 which shows he failed an APFT on 11 January 2006 and passed one on 8 March 2006.

	b.  a DD Form 689, dated 20 March 2006, which shows he sought medical treatment for pain and swelling in his left knee following 3 surgeries.  As a result, he was returned to duty with a recommendation that he perform physical training (PT) at his own pace and distance for a period of 2 weeks.

	c.  a DA Form 3349, dated 27 June 2006, which shows he was issued a temporary physical limitations profile for chronic knee pain due to bilateral surgeries.  The profile expiration date was established as 24 September 2006.  The profile:

		(1)  restricted him from:

* moving with a fighting load at least 2 miles
* performing the 2-mile run portion of the APFT
* swimming

		(2)  allowed him to:

* either walk or bike as an alternate event in lieu of the 2-mile run portion of the APFT
* run, bike, or walk at his own pace and distance
* perform lower body weight training

	d.  a DD Form 689, dated 29 August 2006, which shows he sought medical treatment for pain in his left knee.  As a result, he was returned to duty with a recommendation that he refrain from jumping, marching, and lower body exercise until 13 September 2006.

	e.  a DA Form 2173 which shows he injured his left knee while on active duty while taking an APFT on 8 March 2006.  As a result, he was currently on a temporary profile.  On 5 September 2006, the examining physician opined that:

		(1)  he was not under the influence of alcohol or drugs at the time he sustained the injury;

		(2)  he was mentally sound at the time he sustained the injury;

		(3)  the injury was likely to result in a claim against the government for future medical care; and

		(4)  the injury was incurred in the line of duty.

8.  The applicant's DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) rendered for the period 1 December 2005 through 30 September 2006 on the occasion of his release from active duty (REFRAD) shows he passed the APFT on 15 March 2006 and contains no indication that his temporary profile had any impact on his ability to perform the duties of his military occupational specialty (MOS).  He received a rating of "Excellence" in the Physical Fitness and Military Bearing and a rating of “Success” in the Competence portions of his NCOER.

9.  HRC Orders M-08-802687 dated 6 August 2008 show the applicant was ordered to active duty with a report date of 14 September 2008, in support of Operation Enduring Freedom for a period not to exceed 400 days.

10.  On 8 August 2008, the applicant submitted a request to be exempted from involuntary active duty because it would cause him extreme personal hardship; specifically his knee injury, his age (55), and a recent diagnosis of "High Eye Pressure."  In submission of this request the applicant acknowledged his understanding that the Department of the Army would determine whether he was granted an exemption and that based on his status and the merits of his case he may be:

	a.  concurrently discharged from ARNG and Reserve of the Army status.  If he was eligible for transfer to the Retired Reserve he would be discharged from State ARNG status only.

	b.  discharged from the USAR.

	c.  transferred to USAR Control Group (Standby) until such time as the reason for exemption no longer existed.

	d.  granted a delay in lieu of exemption from entry on involuntary active duty.

He agreed and consented to the above conditions and further requested to be transferred to the Retired Reserve for full retirement benefits at this time, if he was eligible, in lieu of discharge. 

11.  HRC Orders B-11-807079 dated 12 November 2008 show the applicant was to be promoted from SSG/E-6 to SFC/E-7 effective 1 December 2008.  These orders also state "PROMOTION IS NOT VALID AND IT WILL BE REVOKED IF HE IS NOT IN A PROMOTABLE STATUS ON THE EFFECTIVE DATE OF PROMOTION."  

12.  HRC Orders B-11-807079R dated 23 December 2008 revoked the orders promoting the applicant to SFC/E-7.  A review of the Soldier Management System maintained by HRC shows the applicant was afforded an opportunity to provided documentation of passing a current APFT or a permanent medical profile restricting him from taking the APFT prior to revoking his promotion.  The applicant informed his career manager that he did not have the required documentation.

13.  An HRC memorandum, dated 11 September 2009, Subject:  Request for Exemption from Active Duty, shows the applicant's request was approved.  He was advised that as a result of this approved exemption from active duty his status in the USAR must be changed.  Based on the circumstances of his exemption request, he would be transferred to the Standby Reserve.  At the end of 1 year, his situation would be reassessed to determine if he is eligible for mobilization.

14.  HRC Orders D-02-202984 dated 28 February 2012 show the applicant was honorably discharged from the USAR effective 18 January 2012 in the rank/grade of staff sergeant (SSG)/E-6.  At the time of his discharge, he had 30 years of service for pay purposes, but only 15 years and 2 days of qualifying service for retirement.

15.  A review of his Official Military Personnel File (OMPF) failed to provide any indication that the applicant was unable to perform his duties or that he was medically disqualified for further service.

16.  The applicant's record contains a letter rendered by the Director, Army Transition Office, HRC on 23 July 2012 in response to an inquiry by a U.S. Senator on behalf of the applicant regarding a medical retirement and restoring his rank to SFC.  The Director informed the Senator that in order to be eligible for medical retirement, the applicant would have had to have been found medically unfit for duty by the Army Medical Board.  The Reserve Component Retirement Office conducted an audit of the applicant's records; however, there was no evidence that he went before the Army Medical Board to be found unfit for duty.  Therefore, his discharge from the Army Reserve because he reached the maximum age of service, age 60, was required by law.  The Director also informed the Senator that orders were published to promote the applicant to SFC/E-7 on 12 November 2008.  However, Army Regulation 600-8-19, chapter 6, paragraph 6-3(2)k states that submission of a valid passing APFT score within the last 18 months is mandatory for promotion consideration (nonwaivable).  The applicant's most recent APFT did not meet the requirement and his promotion orders were revoked on 23 December 2008.

17.  In the processing of the applicant's first case a staff advisory opinion was obtained from HRC which opined that the applicant had numerous opportunities to earn an additional 5 years of qualifying service and that there are no such waivers authorized.  Accordingly, he is not authorized to receive retired pay benefits.  

18.  The advisory opinion was provided to the applicant for comment and responded to the effect that had he not been injured during Operation Enduring Freedom he would not have reached out to the Board.

19.  The applicant provides the following documents that are also filed in his OMPF:

* Department of the Army (DA) Certificate of Training, dated 16 December 2005, which certifies he completed 70 hours of training at the In-processing Training Center 
* Central Texas College Certificate of Completion for the 80-hour Small Armament Maintenance Course from 23 January to 3 February 2006
* DA Certificate of Training for the 80-hour Small Armament Maintenance Course from 23 January to 3 February 2006
* U.S. Army Europe Certificate of Graduation for the 80-hour Small Armament Maintenance Course from 23 January to 3 February 2006 

20.  The applicant provides the following documents that are not filed in his OMPF:

* Training Support Center Kaiserslautern Certificate of Training for completing the 16-hour training course for the Engagement Skill Trainer
* Certificate of Training for the 24-hour 28th Transportation Battalion Drivers Academy Non-Task Course from 20 to 22 March 2006

21.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U.S. Code, by adding section 12731b (Special Rule for Members with Physical Disabilities Not Incurred in Line of Duty).  Section 12731b states that a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purpose of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he or she has completed at least 15 years and less than 20 years of service and, at the time, the last 8 years of qualifying service was in a Reserve Component.  A qualifying year is one in which a Reserve Component Soldier earns 50 retirement points or more.

22.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It establishes the Army PDES according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  The mere presence of an 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.

23.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  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.  The ABCMR considers individual applications that are properly brought before it.  The ABCMR will decide cases on the evidence of record; it is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be granted a 15-year retirement based on his medical condition as documented by the VA Rating Decision he provides with his application has been carefully considered and appears to lack merit.

2.  Evidence shows that although the applicant accrued 30 years of service, he only completed 15 qualifying years of service for retirement.  Additionally, his record is void of any evidence and he has failed to provide any evidence that shows he was medically unfit to perform his duties at the time of his discharge due to maximum age.  His last NCOER, prepared after he injured his knee, indicates he was fully capable of performing his duties.

3.  In view of the foregoing, he does not meet the criteria for a non-regular retirement since he does not contend that he had a disability that was not incurred in the line of duty, and he does not meet the criteria for a medical retirement in accordance with the laws and regulations in effect at the time of his discharge since there is no evidence that he was unable to perform his duties.  Therefore, there is no basis to grant his request. 

4.  As pertains to his military training being taken into consideration, evidence shows he was selected for promotion which was subsequently revoked for failing to have a current APFT.  Therefore, this additional training is of no relevance in his case and he is not entitled to restoration of his promotion to SFC/E-7.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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 to amend the decision of the ABCMR set forth in Docket Number AR20120017488, dated 11 June 2013.



      _______ _   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)                                         AR20140000666





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ABCMR Record of Proceedings (cont)                                         AR20140000666



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