Search Decisions

Decision Text

ARMY | BCMR | CY2014 | 20140007773
Original file (20140007773.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140007773 


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 to be shown his reason for separation as a medical discharge.

2.  The applicant states he was medically discharged and wants his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show that he was medically discharged with a 40 percent disability evaluation.

3.  The applicant provides copies of –

* his 10 April 2004 DD Form 214 
* U.S. Army Human Resource Command Chronological Statement of Retirement Points
* one page of his DA Form 2-1 (Personnel Qualification Record – Part II)
* a 14 June 2004 memorandum requesting a fit for duty physical
* 81st Regional Readiness Command Notification of Medical Unfitness determination
* 81st Regional Readiness Command Orders 05-068-00001, dated 9 March 2005
* Orders for the Army Reserves Component Overseas Training Ribbon
* Department of Veterans Affairs service connected compensation letter
* 13 pages of medical records



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 U.S. Army Reserve (USAR) on 24 August 1986.

3.  While on active duty for training in El Salvador in June 1994 he sustained a back injury while loading cement bags.

4.  He was called to active duty in support of Operation Enduring Freedom from 15 March 2003.

5.  A 3 December 2003 Report of Medical Examination shows the applicant was suffering from chronic left knee pain, chronic low back pain, hypertension, and high cholesterol. 

6.  His Noncommissioned Officer Evaluation Report for the period March 2003 through February 2004 shows he was fully successful in performing his duties.  While he had a profile, it did not limited his ability to perform his duties.

7.  The applicant was released from active duty on 10 April 2004.  His DD Form 214 shows the reason for separation as completion of required active service.  

7.  On 17 May 2004, the applicant was notified that he had been found medically unfit for retention due to non-duty related conditions due to low back pain with pain into the left leg, and left knee arthritis with pain.

8.  On 9 April 2005, he was transferred to the Retired Reserve due to medical disqualification for retention.



9.  Army Regulation 40-501, at chapter 3, provides standards for medical retention.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.
   
   a.  Paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank or rating.

   b.  Paragraph 3-2b(2) provides that when a member is being separated by reason other than physical disability, their continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that they were unable to perform their duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  Subsequent to his release from active duty on 10 April 2004, the applicant was found medically disqualified for continuation in the USAR and was placed on the Retired List on 9 April 2005. 

2.  Although the applicant had medical problems while on active duty he was not released from active duty as a result of those problems but as a result of demobilization.  

3.  Based on the above there is insufficient evidence to warrant correction of the DD Form 214 to show his subsequent medical retirement.

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)                                         AR20140007773





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007773



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2010 | 20100007329

    Original file (20100007329.txt) Auto-classification: Denied

    The DD Form 214 he was issued shows he was released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of his required active service. On 23 January 2006, he submitted another application for active duty, wherein he volunteered to enter active duty for a period of 1 year during February, March, or April 2006. Even though he had a physical profile, it was temporary in...

  • ARMY | BCMR | CY2010 | 20100008520

    Original file (20100008520.txt) Auto-classification: Denied

    The applicant provides the following documents in support of his application: * A Memorandum, subject: Notification for MEB, dated 22 July 2005 * A Memorandum, subject: Medical Disqualification Review for the applicant, dated 22 July 2005 * Reassignment orders, dated 9 March 2009 * Two DA Forms 3349 (Physical Profile) * Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * DA Form 7349 (Initial Medical Review – Annual Medical Certificate) * Letter from the Department of...

  • ARMY | BCMR | CY2010 | 20100018157

    Original file (20100018157.txt) Auto-classification: Denied

    The applicant provides the following documents: * DA Form 2173 (Statement of Medical Examination and Duty Status) * U.S. Department of Labor Certification of Health Care Provider for Employee's Serious Health Condition * Letter from the Department of the Air Force Physical Disability Board of Review * VA Form 3288 (Request for and Consent to Release of Information from Individual's Records) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Letter from a medical doctor *...

  • ARMY | BCMR | CY2013 | 20130008282

    Original file (20130008282.txt) Auto-classification: Denied

    (4) On 26 March 2004, the Physical Evaluation Board (PEB) considered his bilateral knee pain due to patellofemoral arthritis unfit, existed prior to service and permanently aggravated by an LOD injury on 12 August 2003. (4) His orders show he has 20 years of service and his DD Form 214 states he was discharged with severance pay. The evidence of record shows he later submitted a statement requesting his medical board paperwork be reevaluated to increase his disability rating to 40% for...

  • ARMY | BCMR | CY2011 | 20110000185

    Original file (20110000185.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). On 21 October 2009, the Commander of the 81st Regional Support Command was notified by the Command Surgeon that a review of the medical records submitted on the applicant indicated he did not meet the medical retention requirements in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, due to the following conditions: * PTSD * depression * obstructive sleep apnea * left...

  • ARMY | BCMR | CY2008 | 20080009060

    Original file (20080009060.txt) Auto-classification: Denied

    In the alternative he requests that he be granted a Medical Evaluation Board (MEB) for the purpose of determining whether his Post Traumatic Stress Disorder (PTSD) caused him not to meet retention standards while he was on active duty followed by referral to an informal Physical Evaluation Board (PEB) for determination of whether his PTSD rendered him unfit for duty; thereafter, that he be medically retired based on his total disability to include his PTSD and previously rated right knee and...

  • ARMY | BCMR | CY2005 | 20050003452C070206

    Original file (20050003452C070206.doc) Auto-classification: Denied

    Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. However, at the time of his MEB his commander noted the applicant was not assigned any duties due to limitations primarily concerning his back. The DVA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or...

  • AF | PDBR | CY2011 | PD2011-00415

    Original file (PD2011-00415.docx) Auto-classification: Approved

    A January 2004 clinic encounter during a flare of LBP and the April 2004 orthopedic NARSUM indicated normal or near normal motion without muscle spasm while the March 2004 MEB examination recorded significantly reduced ROM. Other PEB Conditions . The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.

  • ARMY | BCMR | CY2013 | 20130013310

    Original file (20130013310.txt) Auto-classification: Denied

    The applicant provides: * Orders 11-343-00044 (transferring her to the Retired Reserve) * Medical Record Review memorandum, dated 14 June 2011 * Notification of Medical Retention Board Referral, dated 20 July 2010 * Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) * DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 11 November 2011, 15 July 2005, 4 August 2006 * Department of Veterans Affairs (VA) medical records, notes,...

  • ARMY | BCMR | CY2009 | 20090012386

    Original file (20090012386.txt) Auto-classification: Denied

    The applicant's informal PEB found him unfit for his low back pain and rated him at 10 percent based on Army Regulation 635-40 which required more than pain to authorize a higher rating. d. The applicant has provided no evidence of any errors in the MEBD or the PEB findings. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.