IN THE CASE OF:	  

		BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150001558 


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 retirement based on medical disability.

2.  The applicant states during his period of service in the U.S. Army Reserve (USAR) he was diagnosed with diabetes and he was not allowed to deploy for Desert Storm/Shield due to this medical condition.  He completed over 20 years in the USAR and he was discharged for completion of 20 years of qualifying service.  He now feels that he should have received a retirement based on his medical disability.  When he was diagnosed with diabetes in 1981, he was allowed to serve in the USAR for another 9 or 10 years before this medical condition became an issue.  He was denied the chance to deploy, but he was allowed to serve until his retirement date.

3.  The applicant provides copies of the following:

* Health Sciences Command (HSC) Form 201 (Health Questionnaire for Dental Treatment)
* HSC Form 79R (Master Problem List) (blank)
* two Standard Forms (SF) 603 (Health Record – Dental)
* three SFs 88 (Report of Medical Examination)
* three SFs 93 (Report of Medical History)
* Initial Cardiovascular Screening of Military Personnel Over The Age of 40 Prior to Entering The Physical Fitness Program Worksheet
* DA Form 4970 (Medical Screening Summary – Over 40 Physical Fitness Program)
* DD Form 2215 (Reference Audiogram)
* U.S. Army Wellness Check – Health Risk Appraisal
* blood cholesterol results memorandum
* medical examination memorandum
* DA Form 3348 (Physical Profile)

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 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.

2.  The applicant was born in April 1935.  He enlisted in the U.S. Air Force on 31 May 1955.  He was honorably separated on 11 December 1958 and was transferred to the Air Reserve.

3.  He enlisted in the USAR on 21 November 1976 for 1 year.  At the time of his enlistment, he was 41 years, 7 months, and 15 days of age.  He was awarded military occupational specialty 91D (operating room specialist).

4.  He extended his 1976 enlistment for a period of 2 years on 16 October 1977.  He reenlisted in the USAR on 16 October 1977 and 21 November 1978 for 2 and 6 years, respectively.

5.  He provided copies of the following:

* HSC Form 201, dated 19 June 1982, wherein he indicated he had diabetes
* SF 93 (front page) showing he underwent a quadrennial physical examination on 17 March 1984 and he stated he was in good health
* SF 88, dated 17 March 1984, showing he was found qualified for retention
* Undated SF 603 showing he underwent a dental examination
* Initial Cardiovascular Screening of Military Personnel Over The Age of 40 Prior to Entering The Physical Fitness Program Worksheet showing he underwent an over 40 examination on 17 June 1986 and his fasting blood sugar was 83 milligrams (mg)
* DD Form 2215, showing he underwent an audiogram on 17 June 1986
* DA Form 4970, dated 8 August 1987, showing his fasting blood sugar was 155 mg; the form stated his fasting blood sugar was elevated or abnormal; therefore, he was not cleared to enter the Army Over-40 Physical Fitness Testing Program

6.  He again reenlisted in the USAR on 24 September 1987 for 6 years.

7.  He also provided copies of the following:

   a.  An SF 938 showing he underwent a quadrennial physical examination on 17 March 1990.  On the form he stated he was in excellent health and was taking DiaBeta tablets (oral hypoglycemic control) 250 mgs daily for diabetes.

   b.  An SF 88, dated 17 March 1990, showing he was found qualified for retention.

   c.  A U.S. Army Wellness Check – Health Risk Appraisal showing his risk score was 71 with the comment, "he could do better."

   d.  An undated blood cholesterol results memorandum showing his cholesterol level was borderline high for his age and it would be pro-active for him to change his diet and lifestyle in order to lower his cholesterol level.

   e.  A medical examination memorandum, dated 31 July 1990, wherein he was advised that his blood sugar on the physical examination done on 17 March 1990 was 281.  He noted on the physical examination he was on DiaBeta, 250 mgs daily.  For retention, in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3-11, diabetes was disqualifying when proven to require hypoglycemia drugs in addition to restrictive diet for control.  A request for further evaluation by his private physician was recommended and subsequent evidence to show his diabetes was controlled by medication or a restrictive diet.

   f.  A DA Form 3348, dated 2 December 1990, showing he was assigned a permanent profile of 3 for insulin dependent diabetes.  His limitations were no assignment to isolated areas where definitive medical care (U.S. Armed Forces hospital) was not available.  

8.  He extended his reenlistment in the USAR on 23 August 1993 for 1 year.  

9.  He further provided copies of the following:

   a.  An SF 93 showing he underwent a quadrennial physical examination on 17 March 1994.  On the form he stated he was taking zero medication and he was in good health.

   b.  An SF 88, dated 17 March 1994, showing he was diagnosed with a heart murmur, umbitrial hernia, and a slightly enlarged prostate.  He was found unfit for continued service based on these medical conditions.  The form also noted his diabetes had been stable (sugars @ 180) and he had a vascular bypass of the left leg 2 years before with good results.  Upon final review, he was found medically qualified for retention.

10.  A DARP Form 249 (Chronological Statement of Retirement Points), dated 20 September 1994, shows he was credited with 20 years, 6 months, and 11 days of qualifying retirement service as of 20 November 1993.

11.  By memorandum on 27 January 1995 the applicant's command was advised he had reached the maximum age and he would be transferred to the Retired Reserve effective 27 March 1995.

12.  He reached age 60 on X April 1995.

13.  Orders 123-046 issued by the 89th Regional Support Command, Wichita, KS on 3 May 1995, honorably transferred him to the Retired Reserve under the provisions of Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), paragraph 6-1a(2), effective the same day.

14.  Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 6 of the regulation covered transfer to and from the Retired Reserve.  Subparagraph 6-1a(2) stated a Soldier who had completed a total of 20 years of active or inactive service in the U.S. armed forces must request a transfer to the Retired Reserve.

15.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), in effect at the time, stated in paragraph 12-1 (Medically Unfit for Retention), Reserve enlisted soldiers who were no longer qualified for retention by reason of medical unfitness under the standards of Army Regulation 40-501, chapter 3, would be discharged unless they are granted a waiver of the medical disqualification or were eligible and requested transfer to the Retired Reserve under Army Regulation 140-10, paragraph 6-1.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

17.  Army Regulation 40-501, chapter 3, in effect at the time, provided that for the separation of an individual found to be unfit by reason of physical disability, he/she must be unable to perform the duties of his officer, grade, rank, or ratings. Members with conditions, as listed in this chapter, were considered medically unfit for retention on active duty and were referred for disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows on 31 July 1990 the applicant was advised his 17 March 1990 physical examination showed his blood sugar was 281 and noted he was on DiaBeta medication daily.  It was requested he be evaluated by his private physician and to provide evidence his diabetes was controlled by medication or restrictive diet.  On 2 December 1990, he was assigned a permanent profile for insulin diabetes.  

2.  On 17 March 1994, he underwent a physical examination and he reported he was not on medication and indicated his diabetes was under control.  At the time, he was found medically disqualifying for a heart murmur, hernia, and enlarged prostate; however, he was found qualified for retention.

3.  As on 20 November 1993, he had completed 20 years, 6 months, and 11 days of qualifying service for retirement.  On 27 January 1995, his command was advised that he would reach the maximum age and he would be transferred to the Retired Reserve.  He reached age 60 in April 1995.  Orders were published transferring him to the Retired Reserve effective 3 May 1995, for completion of 20 years of nonregular service.

4.  The available evidence shows he sought and received medical treatment for diabetes during his period of service.  He has failed to show through the evidence submitted and there is no evidence of record showing this medical condition was not under control on the date of his transfer to the Retires Reserve or that he should have been processed through medical channels for consideration of medical separation or retirement based on physical disability. His post service treatment for diabetes is not available for the Board to review and would not be sufficiently mitigating to warrant a medical disability retirement.

5.  It is clear he was removed from an active Reserve status upon reaching the maximum age and completion of 20 years of nonregular service.  Through the evidence of record, he has not shown that he was erroneously transferred to the Retired Reserve.  

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)                                         AR20150001558





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ABCMR Record of Proceedings (cont)                                         AR20150001558



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