BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140006630 


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 characterization of service be changed, that she be given a physical disability retirement, and placed on the Temporary Disability Retired List (TDRL).  

2.  She states:

	a.  She was issued a separation due to "Parenthood of Married Service Woman or Sole Parent" and was never afforded the opportunity to be placed on the TDRL as a result of a permanent profile which rendered her unfit for duty.

	b.  She was separated without being properly counseled as warranted by the regulation regarding the Medical Review Board.  No one from the Staff Judge Advocate General ever contacted or counseled her to advise her of her rights. 

	c.  She was separated without knowing what to do or how to do it.  Her request for separation never should have happened prior to attending the medical board in person or having her records go before the board.  She was dealt a true injustice and is still dealing with it to date.  

3.  She provides:

* Self-authored statement
* Orders, dated 10 August 2004, ordering her to active duty for partial mobilization
* Amendment orders, dated 18 December 2004, changing her report date for active duty
* Memorandum, Subject:  Notification to Appear Before a Military Occupational Specialty (MOS)/Medical Retention Board (MMRB), dated 
5 February 1991
* Memorandum, Subject:  Notification of Medical Disqualification, dated 18 March 2005
* Two DA Forms 3349 (Physical Profile), dated 9 January 1991 and 14 March 2005
* Two letters, dated 3 May 1991 and 5 December 1991, from the Department of Veterans Affairs (VA), Baltimore, MD
* Letter, dated 13 December 2001, from the VA, Decatur, GA
* VA Rating Decision, dated 6 December 2001
* Medical documents 
* DD Form 4 (Enlistment/Reenlistment Document), dated 23 February 2001
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 February 1991

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 enlisted in the Regular Army on 10 October 1986 at the age of 24.  She completed initial entry training and was awarded MOS 71L (Administrative Specialist).  She was promoted to staff sergeant/E-6 on 1 January 1991.  

3.  On 9 January 1991, she was placed on a permanent profile for Raynaud's Phenomenon (a disease that causes some areas of the body, such as fingers and toes, to feel numb and cold in response to cold temperatures or stress).  Her DA Form 3349 shows her PULHES was 311111 at that time.  

4.  On 16 January 1991, she voluntarily requested separation from the military service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 6, paragraph 6-7, for hardship.  

5.  On 4 February 1991, the separation authority directed the applicant be separated from the military under the provisions of AR 635-200, chapter 6, paragraph 6-3b(1) with service characterized as honorable.  The separation authority recommended the applicant be transferred to the Individual Ready Reserve.  

6.  In a 5 February 1991 memorandum, the Director of Personnel, Headquarters, U.S. Army Test and Evaluation Command, Aberdeen Proving Ground (APG), MD notified the 61st Ordnance Brigade, U.S. Army Ordnance Center and School, APG, MD that the applicant was identified as possessing a permanent physical profile with a "3" or "4" in one or more of the PULHES factors.  According to Army policy, all Soldiers in this category would appear before a locally-constituted MMRB to determine the Soldier's ability to physically perform in a worldwide field environment.  The Director of Personnel indicated the applicant was required to appear before the MMRB on 22 February 1991, sign and return the Statement of Notification, and indicate a desire to appear before the Board or waive an appearance.  The suspense date for the applicant to sign and return the Statement of Notification was 15 February 1991.  The MMRB would be required to make one of four recommendations concerning each Soldier:
   
	a.  retain the Soldier in current primary MOS (PMOS)/specialty code;

	b.  place the Soldier in a probationary status not to exceed 6 months;

	c.  recommend to Department of the Army that the Soldier be reclassified into another PMOS; or 

	d.  refer the Soldier to the Army's Physical Disability System.

7.  Her service record is void of the MMRB proceedings and her Statement of Notification.  

8.  She was honorably released from active duty on 13 February 1991 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on the following day.  She completed 4 years, 4 months, and 4 days of active military service.  

9.  In May 1991, the VA granted her service-connection for Raynaud's Disease with a 20% disability rating.  On 5 December 1991, her service-connected disability rating for Raynaud's Disease was increased from 20% to 40%.  

10.  She reenlisted in the USAR on 31 March 1994 for a period of 6 years with a 6-month extension that established her new expiration term of service date as 30 March 2001.  

11.  In a 10 October 2000 memorandum, a Command Surgeon, USAR Personnel Command, St. Louis, MO informed the applicant that:

	a.  Her most recent Army physical examination (20 May 2000) indicated she may be disqualified for retention due to an existing medical condition.  In accordance with the Army Medical Reviewing Authority at this Center, her physical status must be re-evaluated at that time.

	b.  Failure to maintain a current physical could result in her elimination from the USAR pursuant to AR 135-178 (Enlisted Separations).  The following information was required for further evaluation:  an original or certified true copy(ies) of a statement from her physical indicating the history, treatment, current medication, detailed examination of Raynaud's Phenomenon and Hyperthyroid Disease.

	c.  Her physician's statement should include the approximate date of the onset of her illness or disability, the complete diagnosis, treatment administered and response, range of motion in degrees, prognosis, and whether there would be any limitations to the performance of her military duties or normal civilian occupation.  The Army could assume the responsibility of any professional or administrative fees.  

12.  On 12 February 2001, she underwent a periodic physical examination.  A Standard Form 507 (Medical Record) indicates the Physical Review Board determined she was qualified for retention in the USAR in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3 and her PULHES was 211111.  

13.  On 23 February 2001, she reenlisted in the USAR for a period of 6 years.  

14.  A VA Rating, dated 6 December 2001 shows effective on 4 February 2000 the VA increased her service-connected disability rating for Raynaud's Disease from 40% to 60%.


15.  On 14 March 2005, she was placed on a permanent profile for cold weather injury, Raynaud's Disease.  Her DA Form 3349 shows her PULHES at the time was 311111.  Block 4c (Profile Type) shows an "X" in the block for "Needs MEB [Medical Evaluation Board]/PEB [Physical Evaluation Board]."

16.  In an 18 March 2005 memorandum, the Command Surgeon, U.S. Army Human Resources Command, St. Louis, MO informed the applicant that a recent review of available medical records revealed one or more medical conditions that disqualified her for retention in the USAR.  The condition under consideration was listed as "Raynaud's Disease" (AR 40-501, paragraph 3-41e).  She was given three options to elect by 1 April 2005:

	a.  She could elect transfer to the Retired Reserve if she was otherwise eligible for retirement based on total qualifying years of service.  As a member of the Retired Reserve, she would not be eligible for retired pay or other benefits unless otherwise entitled by law.

	b.  She could elect to be discharged from the Army Reserve.  If she elected discharge from the Army Reserve, she would receive an Honorable Discharge Certificate.

	c.  She could elect consideration by a Non-Duty Related Physical Evaluation Board (NDR-PEB).  

17.  She acknowledged notification of medical disqualification for further retention in the Active Reserve and elected to transfer to the Retired Reserve (Applies only to those with 20 qualifying years of service and to VSI [Voluntary Separation Incentive]/SSB [Special Separation Benefit] Recipients).  

18.  In a memorandum, dated 26 January 2006, the Command Surgeon, U.S. Army Human Resources Command informed the applicant that she had failed to provide the documentation for a determination of her physical fitness.  A determination was made and she was found not fit for medical retention.  The command surgeon advised the applicant that a "C" (permanent disqualification code) was placed in her medical file based on the determination made by the command surgeon.  

19.  In a memorandum, dated 24 March 2006, the Command Surgeon determined that the applicant did not meet medical retention standards for continued military service in accordance with AR 40-501, chapter 3.  As a result, the applicant would be discharged from the USAR.

20.  Orders published on 20 June 2006 show she was honorably discharged from the USAR under the provisions of AR 135-178 effective 20 June 2006.  

21.  Her Chronological Statement of Retirement Points does not show she completed 20 qualifying years for retirement.  This statement shows she was credited with 243 retirement points.

22.  She provided a self-authored statement in which she attested, in effect:

	a.  At the time of her discharge from active duty due to parenthood, her records were scheduled to go before a medical evaluation performance board.  No one ever counseled her to say that she requested her discharge be placed on hold or abandoned due to the impending medical board.  Therefore, she made a decision to be discharged for parenthood based on ignorance of the regulation and a lack of counseling.  

	b.  Although she was able to successfully advance in rank, she was a young Soldier with 4 years of service who was still trying to navigate her way through the Army.

	c.  Although her request comes many years after her discharge, her condition has worsened and she was granted a 40 percent (%) compensable rating by the VA within a few months of leaving active duty.  Since 1999 she has been rated at 60% with additional medical issues which are now being considered as secondary to her Raynaud's phenomenon.  

	d.  She was transferred to the Individual Ready Reserve immediately upon separation and remained a member of such.  She discovered that she had been discharged as a result of being unfit for duty on 19 September 2013.  

	e.  She was recalled to active duty in September 2004, but she submitted a request to have orders deleted due to sole parenthood and Raynaud's condition.  She received a letter from the U.S. Army Human Resources Command informing her that she did not meet the fitness standards due to Raynaud's condition and she was given a choice of three options, transfer to the Retired Reserve; discharge from the Army Reserve; or consideration by a non-duty related PEB.  She elected transfer to the Retired Reserve.  She periodically checked the status of her request, but she was informed in September 2013 that she had been discharged.  She wasn't given an explanation to the reason for discharge.  She stated she was shocked because she feels she was again stripped of her rights.  



23.  AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.  

   a.  Chapter 3 provides guidance on the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for service.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of their duties; may compromise or aggravate the Soldier’s health or well-being if the Soldier were to remain in the military Service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the Government if the individual Soldier were to remain in the military Service.  

   b.  Paragraph 7-11a(3)(e) states that Item 4 of the DA Form 3349 will specify the profile type - temporary or permanent.  If the profile is permanent, the profiling officer must assess if the Soldier meets the retention standards of 
AR 40-501, chapter 3.  Those Soldiers who meet retention standards but have at least a permanent 3 or 4 PULHES serial will be referred to an MMRB in accordance with AR 600-60 (Physical Performance and Evaluation System (PDES)), unless waived by the MMRB convening authority.  Those Soldiers who do not meet retention standards must be referred to an MEB per chapter 3.  

24.  AR 635-40 establishes the Army 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.

   a.  Paragraph 3-4 provides that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty (LOD) criteria to be eligible to receive retirement and severance pay benefits:  (1) 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; and (2) 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.

   b.  Paragraph 8-2 states that Soldiers of the Reserve Components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

   c.  Paragraph 8-6 states that when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation.  The medical treatment facility (MTF) commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.  If the Soldier is not eligible for referral to a PEB, the MTF will notify the Soldier's unit commander for disposition under applicable regulations.
   
   d.  Paragraph 8-9 states that a Soldier not on extended active duty, who is unfit because of physical disability:
   
   (1)  May be permanently retired or have his or her name placed on the 
TDRL, if:
   
* he or she has at least 20 years of service
* their disability is rated at 30 percent or more
* his or her disability occurred in the LOD, and is the proximate result of performing active duty or active duty training (IDT)

   (2)  May be separated with severance pay if:

* his or her disability is rated at less than 30 percent
* he or she has less than 20 years of service
* their disability occurred in the LOD, and is the proximate result of performing active duty or IDT

   	(3)  May forfeit severance pay; be transferred to the Retired Reserve; and receive under the provisions of Title 10, U.S. Code, Section 12731, (10 USC 12731) nondisability retired pay at age 60, if at least 20 qualifying years of service for retirement have been completed and transfer to the retired Reserve is requested.  According to the provisions of 10 USC 1209 and 1213 all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve.  Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay.

25.  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 rated at least 30%.

26.  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 rated at less than 30%.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

27.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests that her characterization of service be changed and that she be given a physical disability retirement and placed on the TDRL have been carefully considered and determined to have merit.

2.  The evidence of record does not indicate she was separated without being properly counseled.  

3.  The evidence of record shows the applicant was placed on a permanent profile on 9 January 1991 for Raynaud's phenomenon and she received a 3 PULHES serial at that time.  Approximately a week later she submitted a request for separation from the military under the provisions of AR 635-200, chapter 6 for a hardship discharge - parenthood of married service woman or sole parent.

4.  On 4 February 1991, the separation authority directed the applicant be separated from the military under the provisions of AR 635-200, chapter 6 with an honorable discharge.  The applicant was separated on 13 February 1991 and was transferred to the USAR Control Group (Reinforcement) on the following day.  At the time of her separation, she had completed 4 years, 4 months, and 4 days active military service.



5.  On 5 February 1991, an official at Headquarters, U.S. Army Test and Evaluation Command identified the applicant as possessing a permanent physical profile with a "3" or "4" in one or more of the PULHES factors.  As a result, the applicant was required to appear before the MMRB.  However, the evidence of record shows she was released from active duty and transferred to the USAR prior to the convening date of the MMRB.  

6.  The evidence of record shows the VA increased her service-connected disability rating for Raynaud's Disease to 60% on 4 February 2000.  However, the fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

7.  She underwent a periodic physical examination on 12 February 2001 and was found qualified for retention in the USAR at that time.  

8.  By 14 March 2005, the applicant was given a permanent profile for cold weather injury, Raynaud's Disease with a "3" PULHES serial.  She was notified she didn't meet the Army medical standards in the USAR in accordance with AR 40-501.  She elected transfer to the Retired Reserve.  However, she did not have 20 qualifying years of service nor was she a VSI/SSB recipient; therefore, she was not eligible for transfer to the Retired Reserve.

9.  The Command Surgeon notified the applicant that she had failed to provide the required documentation for a determination of her physical fitness and determined the applicant did not meet medical retention standards for continued military service.  As a result, the applicant was discharged from the USAR on 20 June 2006.  

10.  It appears the applicant incurred Raynard's Disease while she was on active duty and entitled to basic pay.  She received a 3 PULHES at that time.  However, her service record does not indicate an MEB was initiated.  

11.  In view of the facts that the Command Surgeon determined the applicant was not fit for duty and that she had a permanent profile of 311111 for Raynard's Disease, a condition diagnosed while she was in the Regular Army, the applicant should be issued invitational travel orders affording her the opportunity to have her overall medical fitness determined by an MEB and if necessary a PEB in order to determine the disposition of her separation action.



BOARD VOTE:

___X_____  ___X_____  __X__  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by offering her the opportunity to undergo a physical evaluation to determine her fitness for retention in the Army by:

   a.  directing the Office of The Surgeon General to contact her and arrange, via appropriate medical facilities, a physical evaluation; and 

   b.  if appropriate, referral to an MEB and an informal PEB. 

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the physical evaluation and, if necessary, the MEB and PEB. 
 
3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB. 

4.  In the event it is determined that the applicant should be medically separated, her honorable discharge from the USAR should be voided. 



      _______ _  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)                                         AR20140006630



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ABCMR Record of Proceedings (cont)                                         AR20140006630



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