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
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ABCMR Record of Proceedings (cont) AR20140007773
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