IN THE CASE OF:  	  

		BOARD DATE:  23 September 2014	  

		DOCKET NUMBER:  AR20140003434 


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 his discharge from the U.S. Army Reserve (USAR) be changed to a medical discharge.

2.  The applicant states he was found medically disqualified for retention in the USAR. 

3.  The applicant provides:

* Non-duty related (NDR) physical evaluation board (PEB) packet with allied documents (referral and acknowledgement)
* Required PEB for [Applicant] memorandum
* DA Form 2-1 (Personnel Qualification Record)
* Noncommissioned Officer Evaluation Reports
* Summary of Military Occupational Specialty (MOS) Medical Retention Proceedings
* DD Form 2808 (Report of Medical Examination)
* DD Form 2807-1 (Report of Medical History) and allied documents
* Standard Form 507 (Medical Record)
* DA Form 3349 (Physical Profile)

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.  The applicant's records show he was born in February 1954.  

3.  Having had prior active service, he enlisted in the USAR on 29 September 1980 and he held MOS 71L (Administrative Specialist).  He served through multiple reenlistments, in a variety of assignments, and he attained the rank/grade of master sergeant (MSG)/E-8. 

4.  On 18 December 1996, the USAR Personnel Center, St. Louis, issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). 

5.  On 25 March 2004, by memorandum, the Deputy Chief of Staff, G-1, Headquarters, 90th Regional Readiness Command (RRC), North Little Rock, AR, indicated that: 

* An MOS/Medical Retention Board (MMRB) was appointed by letter on 15 March 2004 and convened on 20 March 2004
* The applicant did not appear before the MMRB; his records, reports, and other pertinent documents were reviewed
* The MMRB recommended his referral to a non-line of duty PEB 

6.  On 18 April 2004, by memorandum, the 90th Division (Institutional Training (IT)), Oklahoma City, OK, notified the applicant's battalion commander (2nd Battalion, 9th Regiment, 3rd Brigade, Baton Rouge, LA), that the applicant would be referred to an NDR PEB and it is necessary that his PEB packet contain all the necessary documents and be timely prepared and submitted.

7.  On 2 June 2004, his battalion commander notified him that upon review of his medical records he was found medically disqualified for retention in the USAR in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  He was provided with his options.  

8.  He acknowledged the notification and elected a non-line of duty PEB to review his case solely for determination of fitness for service in the USAR and appearance before such a board.  He indicated if the NDR PEB finds him unfit, he would like to be transferred to the Retired Reserve. 

9.  On 16 June 2004, by memorandum, his battalion commander recommended his referral to an NDR PEB.  He indicated that the applicant had been issued a physical profile and he had been advised of his rights.  He further rendered a commander's evaluation statement of the applicant describing his limitations.  He indicated the applicant had routinely demonstrated on numerous times and in a variety of locations and conditions that he could not fully and satisfactorily perform all the duties, responsibilities, and physical tasks required of his MOS. 

10.  On 24 July 2004, by memorandum, the 95th Division Surgeon indicated that based on the findings of the MOS/Medical Retention Board, dated 25 march 2004, and subject to the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), the applicant is referred to a PEB for fitness determination to assess his ability to reasonably perform his duties. 

11.  On 17 October 2004, he submitted a statement indicating his non-signing of the transfer document requested because he was awaiting the process of medical disqualification for retention in the USAR. 

12.  On 1 November 2004, Headquarters, 95th Division (IT) published Orders Number 04-306-00002 releasing him from the USAR and transferring him to the USAR Control Group (Reinforcement) effective 1 November 2004 by reason of having attained maximum authorized years of service. 

13.  On 23 November 2004, by memorandum, Headquarters, 90th RRC returned the NDR-PEB packet without action.  The memorandum indicated the applicant does not meet medical retention standards of Army Regulation 40-501, paragraph 3-39(h) and he has also reached his maximum years of service and should be retired from the service. 

14.  On 10 May 2007, subsequent to a medical examination, he was issued a physical profile for diabetes, asthma, left shoulder pain, low back pain, and loss of hearing.  

15.  The U.S. Army Human Resources Command published Orders D-01-701873 honorably discharging him from the USAR. 



16.  On 4 December 2013, he applied for retired pay at age 60 and on 29 January 2014, the U.S. Army Human Resources Command published Orders C01-490787 placing him on the Retired List in his retired rank/grade of MSG/E8 effective XX February 2014, his 60th birthday. 

17.  DOD Instruction 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability.  

	a.  Paragraph E3.P3.5.2. (Presumptive Period) states service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs after any of the circumstances designated in paragraphs E3.P3.5.2.1. through E3.P3.5.2.4. including when (E3.P3.5.2.4) an enlisted member is within 12 months of his or her retention control point (RCP) or Expiration of Active Obligated Service (EAOS) but will be eligible for retirement at his or her RCP/EAOS. 

	b.  Paragraph E3.P3.5.3. (Overcoming the Presumption).  The presumption of fitness rule shall be overcome when:

		(1)  E3.P3.5.3.1. Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or 

		(2)  E3.P3.5.3.2. Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or 

		(3)  E3.P3.5.3.3. The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period.  When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.

16.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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 or her 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.  Paragraph 3-4 states under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LD criteria to be eligible to receive retirement and 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  (IDT).

	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.

17.  Army Regulation 135-178 (USAR Enlisted Administrative Separation) in effect at the time, established the policies, standard, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components (RC).  Chapter 3 states discharge will be accomplished when it has been determined that an enlisted member is no longer qualified for retention by reason of medical unfitness unless the member requests and is granted a waiver or is eligible for transfer to the Retired Reserve.  RC members who do not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training will be processed as specified in Army Regulation 635-40.  

DISCUSSION AND CONCLUSIONS:

1.  Most of the applicant's medical records are not available for review with this case.  However, based on the available documents he provided, it appears he sustained certain non-duty related illnesses, including asthma, diabetes, low back pain, and loss of hearing.  An MMRB recommended his referral to a NDR PEB.  

2.  The applicant confuses a PEB under the PDES and an NDR PEB. 

	a.  To be eligible for a duty-related medical processing, an RC Soldier not on active duty must have a medically unacceptable condition and the medical condition must be related to service either by being incurred while on active duty or when not incurred while on active duty, have permanently aggravated by military service.  A duty-related condition is normally validated by an approved line of duty determination. 

	b.  An NDR PEB is a non-line of duty PEB that reviews the Soldier's condition solely for a determination of fitness for continued service in the RC.  

3.  In the applicant's case, he was identified and referred by an MMRB to an NDR PEB.  The Command Surgeon reviewed his medical records and determined he was unfit for retention in the USAR.  He was notified, counseled, advised, and presented with his options, and he appears to not have made an election to transfer to the Retired Reserve, in the event he is found unfit for retention in the USAR, at the time.  As such, he was transferred to the USAR Control Group (Reinforcement).  He was ultimately discharged from the USAR on 23 January 2007.

4.  All this occurred within 12 months of his mandatory removal date of 1 November 2004 due to maximum authorized years of service.  Accordingly, his NDR PEB proceedings were administratively returned without action since he reached maximum years of service.  In other words, his military service was not cut due to his medical conditions.  It was cut by reason of having achieved maximum years of service.  Therefore, he was not entitled to a medical discharge. 

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)                                         AR20140003434





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ABCMR Record of Proceedings (cont)                                         AR20140003434



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