IN THE CASE OF:  	  

		BOARD DATE:  29 January 2015	  

		DOCKET NUMBER:  AR20140009440 


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, in effect, correction of his records to show he was diagnosed with unfitting conditions and medically discharged with an honorable characterization of service.

2.  The applicant states he enlisted in the U.S. Army Reserve (USAR) and was ordered to active duty for training (ADT).  He was released from ADT with an uncharacterized characterization of service.  He was separated from the USAR on 26 June 2011.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and military/civilian 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 USAR on 27 June 2003 for a period of 8 years.

3.  A DD Form 214 shows he was ordered to ADT on 17 July 2003, released from ADT on 17 December 2003 based on completion of required active service, and transferred to a USAR unit.  It also shows he was awarded military occupational specialty (MOS) 92F (Petroleum Supply Specialist) and that he had completed 5 months and 1 day of net active duty service this period.  Item 24 (Character of Service) shows the entry, 'Uncharacterized."

4.  Army Regulation 15-185 (ABCMR), paragraph 2-5, states the ABCMR will not consider any application if it determines the individual has not exhausted all administrative remedies available to them.  There is no evidence the applicant requested correction of the characterization of service (i.e., uncharacterized) shown on his DD Form 214 by the U.S. Army Human Resources Command.
Therefore, that portion of the applicant's request will not be discussed further in this Record of Proceedings.

5.  The applicant was honorably discharged from the USAR on 26 June 2011 based on expiration of his military service obligation.

6.  A review of the applicant's military personnel record failed to reveal any evidence that he was referred to a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) during the period of service under review.

7.  In support of his application the applicant provides the following documents.

   a.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 May 2005, with military medical records, that show the applicant was diagnosed with hypertension.  The DA Form 2173 does not show a finding for the line of duty determination.

   b.  Headquarters, 81st Regional Readiness Command, Birmingham, AL, memorandum, dated 13 April “2006,” subject:  Notification of Medical Unfitness for Retention, that shows as a result of the applicant's medical examination he was determined to be medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  He was to respond by 21 May 2005 indicating the option he chose regarding his medical disqualification.  (There is no record of a response by the applicant.)

   c.  A Soldier's Acknowledgement or Pre-MMRB (MOS Medical Retention Board) Counseling, dated 21 July 2007, that shows the applicant waived personal appearance before the MMRB.

   d.  His military and civilian medical records, spanning the period from 22 July 2004 to 15 January 2014, that document medical assessments and treatment for hypertension.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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.  Chapter 3 (Policies) provides that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her 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.

9.  Army Regulation 635-40 also states that under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show that he was diagnosed with unfitting conditions and medically discharged.

2.  The evidence of record shows the applicant was diagnosed with hypertension in May 2005.

   a.  He was notified that it was determined he was medically disqualified for continued service in the USAR.  However, there is no evidence of record that the applicant responded to the notification indicating the option he chose.  



   b.  He was notified to appear before an MMRB in July 2007.  The evidence of record shows that he waived personal appearance before the MMRB.
   
   c.  There is no evidence of record that shows the applicant was diagnosed with any unfitting medical condition(s) by an MEB/PEB during the period of his military service.

   d.   He continued to serve in the USAR until expiration of his military service obligation on 26 June 2011.

3.  The evidence of record shows that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his duties.  The evidence of record fails to support a conclusion that he was unable to perform his duties.  

4.  In addition, there is no evidence of record to show his hypertension incurred while he was entitled to basic pay. 

5.  Thus, he is not entitled to a medical discharge.

6.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20140009440



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ABCMR Record of Proceedings (cont)                                         AR20140009440



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