IN THE CASE OF:  	  

		BOARD DATE:  10 March 2015	  

		DOCKET NUMBER:  AR20140005701 


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 with 20 years of active service.

2.  The applicant states:

* he injured his back in July 2008 when he fell off the back of a helicopter in Afghanistan
* he sustained other injuries and illnesses
* U.S. Army Human Resources Command (HRC) records show he completed a total of 19 years, 2 months, and 29 days of active duty service and his AHRC Form 249-E (Chronological Statement of Retirements Points) shows he completed 4 creditable years and .85 years of equivalent active duty time
* he was medically boarded out of the Army after his injuries
* he was referred to the Military Occupational Specialty (MOS) Medical Retention Board (MMRB)
* the MMRB found him unfit to continue in MOS 13F (Fire Support Specialist) at the time and found him fit to reclassify to MOS 68E (Dental Specialist) – an MOS he was already trained in – and he was offered a position in Brussels, Belgium
* the commanding general changed the decision of the board without any reasonable cause and referred him to a medical evaluation board (MEB)
* based on the MEB decision, he was transferred to Fort Jackson, SC, where he was discharged for disability with severance pay in the amount of $165,026.40 and a 90-percent disability rating from the Department of Veterans Affairs (VA)
* the Defense Finance and Accounting Service paid him at the over 22 years rate and he was eligible for retirement on 21 September 2012
* retiring from the Army is very important to him and HRC believes he may have 20 or more years of creditable service for Reserve retirement
* he understands he will have to repay his severance pay in order to receive a 20-year medical retirement

3.  The applicant provides:

* self-authored statement
* email correspondence
* Retirement Points Accounting System printout, dated 19 March 2014
* MMRB Summary, dated 20 February 2009
* commander's statement, dated 28 February 2011
* memorandum, dated 20 August 2009, subject:  Request for Exception to Policy for Stop Loss/Stop Move for (Applicant)
* VA letter, dated 17 December 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlisted Record Brief (ERB), dated 3 May 2011
* leave and earnings statement for 1 through 31 August 2011
* medical record extracts

CONSIDERATION OF EVIDENCE:

1.  After having prior periods of enlisted service in the Regular Army and the U.S. Army Reserve (USAR), the applicant enlisted again in the Regular Army on 13 January 2003.

2.  His ERB shows he served in Afghanistan during the period 2 October 2007 through 28 July 2008 in MOS 13F.

3.  The applicant's complete medical records are not available for review.  Medical records provided by the applicant show, in part, he suffered a fall from a helicopter while serving in Afghanistan.

4.  On 18 February 2009, he appeared before an MMRB.  The MMRB:

* determined his sleep apnea, chronic pain, being unable to run, hypertension, and migraines did not meet the minimum physical standards for his MOS
* determined his limitations included inability to move with a fighting load at least 2 miles, inability to perform 3-to-5 second rushes, and no running
* concurred with the commander's assessment that the applicant's condition did limit his ability to perform the duties required by his primary MOS
* recommended his reclassification

5.  On 19 March 2009, the applicant's commanding general referred him to an MEB/physical evaluation board (PEB).

6.  On an unknown date, the applicant's records were reviewed by an MEB which referred him to a PEB.  On 13 July 2009, the PEB concluded that his low back pain and obstructive sleep apnea did not have any functional impairment which prevented satisfactory performance of duty.  The PEB found him fit for duty in his current grade and specialty and recommended his return to duty.

7.  On 23 July 2009, the applicant concurred with the findings and recommendations of the PEB.

8.  On 29 July 2009, the PEB findings were approved by the U.S. Army Physical Disability Agency.  The medical treatment facility was directed to modify his physical profile and ensure appropriate systems reflected his assignment limitations.

9.  On 28 February 2011, the applicant's commander provided a statement wherein she stated the applicant's condition had worsened and he could not meet the mental and physical demands of his job without extensive pain and discomfort.

10.  On 18 November 2011, a PEB considered his MEB diagnoses of other medical conditions which included an anxiety disorder and degenerative arthritis of the lumbar spine.

	a.  The PEB rated the applicant's degenerative arthritis of the lumbar spine as 10-percent disabling and stated this condition was unfitting because it restricted him from riding in a military vehicle and wearing his body armor for at least 12 hours per day, which significantly impaired his ability to perform his forward observer duties in an austere environment.

	b.  His other conditions, both individually and in combination, were not associated with his physical profile limitations and did not impact his ability to perform any one of the 10 functional activities.

	c.  His rating and code to describe his condition was determined by the VA under the VA/Department of Defense Joint Disability Evaluation Board.

	d.  The PEB further determined the applicant's medical and physical impairment prevented reasonable performance of his duties required by his grade and MOS.  The PEB recommended the applicant's separation with severance pay.

11.  On 23 November 2011, the applicant concurred with the findings and recommendation of the PEB.

12.  On 10 December 2011, the PEB findings were approved.

13.  Headquarters, U.S. Army Training Center and Fort Jackson, 
Orders 346-1336, dated 12 December 2011, show the applicant was authorized disability severance pay in pay grade E-7 based on 19 years, 2 months, and 29 days of service.

14.  On 19 December 2011, the applicant was honorably discharged with severance pay due to a combat-related disability.  His DD Form 214 shows in:

* item 12c (Net Active Service This Period) – 0008  11  07
* item 12d (Total Prior Active Service) – 0010  03  22
* item 12e (Total Prior Inactive Service) – 0003  04  15
* item 18 (Remarks) – Disability Severance Pay – $165,026.40

15.  The applicant provided a self-authored statement, email correspondence to and from HRC advising him about his Reserve retirement points, and extracts of his records.  He also provided extracts of his medical records and a letter from the VA showing he was awarded a 90-percent disability rating effective 1 December 2013.

16.  On 23 January 2015, the Branch Chief, Human Resource Service Center, HRC, provided an advisory opinion wherein he stated:

* the applicant is credited with 19 years, 2 months, and 29 days of active duty service and 0 years, 8 months, and 2 days of Reserve service active duty for training
* both his active duty and Reserve active duty for training total service come to 19 years, 11 months, and 1 day

17.  On 2 February 2015, a copy of the advisory opinion was forwarded to the applicant for review and response.  On 10 February 2015, the applicant provided a response wherein he stated:

* he received a verbal agreement from the Dental Activity Command Sergeant Major to be assigned to Brussels, Belgium, to allow him to continue to serve, but this was denied by the commanding general
* the pressure from his chain of command was very stressful and depressing and he was forced out by a certain date
* it is disheartening to know he may have had over 20 years of creditable service when he was medically boarded out of the Army
* he had a challenging but fulfilling military life, although in the end it cost him his health

18.  His records are void of and he failed to provide evidence showing he completed 20 or more years of active duty service.  His records are also void of any evidence he requested or was approved for continuance on active duty (COAD) or continued active Reserve status (COAR).

19.  Army Regulation 40-501 (Standards of Medical Fitness), then in effect, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.

	a.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provided the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter were referred for disability processing.

	b.  Chapter 7 (Physical Profiling) provided a system for classifying individuals according to functional abilities and was used to assist the unit commander and personnel officer in their determination of what duty assignments the individual was capable of performing and if reclassification action was warranted.

		(1)  Four numerical designations (1-4) were used to reflect different levels of functional capacity in six factors (PULHES):

* P – physical capacity or stamina
* U – upper extremities
* L – lower extremities
* H – hearing and ears
* E – eyes
* S – psychiatric

		(2)  Numerical designators 2 and 3 indicated that an individual had a medical condition or physical defect which required certain restrictions in assignment within which the individual was physically capable of performing military duty.  The individual received assignments commensurate with his or her functional capacity.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibility, and procedures that apply in determining whether a member is unfit because of physical disability to perform the duties of his office, grade, rank, or rating.

	a.  The mere presence of an impairment does not, in itself, justify a finding of unfitness because of physical disability.

	b.  The medical treatment facility commander with the primary care responsibility evaluates those referred to him and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB.  Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

	c.  Paragraph 3-2b(1) states that when a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption may be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit.

	d.  Paragraph 3-3e states Soldiers who have previously been found unfit for duty by a PEB but were COAD will be referred to a PEB prior to retirement or separation processing.

	e.  Paragraph 4-19d(1) states the first and most important determination made by the PEB is whether the Soldier was physically fit or unfit to perform the duties of his or her office, grade, rank, or rating.

	f.  Paragraph 4-19i states that after establishing the fact that a Soldier is unfit because of physical disability and that the Soldier is entitled to benefits, the PEB decides the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of rating.  The VA Schedule for Rating Disabilities is used in deriving percentage ratings.

	g.  Paragraph 4-22g states that if a Soldier has requested COAD, the Army Physical Disability Appeal Board (APDAB) will forward the case to the appropriate office for COAD review.

	h.  Paragraph 6-2 states a Soldier who is physically unqualified for further military service has no inherent or vested right to continuation.

	i.  Paragraph 6-3 states Reserve Component Soldiers determined unfit while mobilized may only request continuation in their pre-mobilization status or in the Individual Ready Reserve.  They are ineligible for COAD, or otherwise being accessed onto the Active Duty List as a COAD.  The Soldier may return to a mobilized status subject to mobilization policy.

	j.  Paragraph 6-7 states that for a Soldier to be considered for COAD or COAR, a Soldier must be:

* basically stable or have a disability that is of slow progression according to accepted medical principles; it must not be deleterious to the Soldier's health or prejudicial to the best interest of the Soldier or the Army
* physically capable of performing useful duty in an MOS for which currently qualified or potentially trainable (to include reclassification)

	k.  Paragraph 6-14 states if the managing physician believes it is necessary, or the Soldier's commander requests it, the Soldier will be referred to an MEB or PEB.

21.  Army Regulation 140-185 (Army Reserve Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credit and training for USAR Soldiers.

	a.  Paragraph 3-3(3) states the DA Form 1380 is used to record inactive duty training by non-unit Soldiers under the jurisdiction of HRC who are attached for retirement points only to USAR troop program units, Army National Guard units, or to another service or component for training.

	b.  This regulation further provides that a qualifying retirement year is a full 12-month period in which a Soldier is in an active status and earns a minimum of 50 retirement points.  A qualifying partial retirement year is a period less than 12 months in which a Soldier is in an active status and earns the minimum number of retirement points as designated in the pro-rated tables in appendices A, B, and C.

22.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

23.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a medical retirement with 20 years of active service was carefully considered.

2.  Although the applicant provided evidence from HRC suggesting he may have over 20 years of service for Reserve retirement, insufficient evidence has been presented showing he completed 20 or more years of active service.

3.  The applicant was found unfit for duty and processed through the PDES.  He was found fit and returned to duty.  However, he subsequently developed degenerative arthritis of the lumbar spine which was found to be an unfitting medical condition and he was assigned a 10-percent disability rating.

4.  The evidence of record shows he concurred with the findings and recommendations of the PEB.  His records are void of and he failed to provide evidence showing he requested and received approval for COAD or COAR.

5.  Since he had less than 20 years of active service and his medical condition was rated less than 30-percent disabling, he was discharged with severance pay.

6.  The applicant failed to show any error or inequity in his PDES processing.  Further, HRC verified his service was less than 20 years; therefore, he is not entitled to the requested relief.



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 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)                                         AR20140005701



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ABCMR Record of Proceedings (cont)                                         AR20140005701



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