RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            22 JANUARY 2004                  
	DOCKET NUMBER:   AR2003089134

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Arthur a. Omartian		Member	
	Mr. Ronald J. Weaver		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests reconsideration of his previous request to have his records corrected to show that he was medically retired by reason of physical disability.

2.  The applicant states that information contained in the original consideration of his case could not be accurate.  He states that telephone calls which the Board indicated he had received could not have taken place as he did not have an answering machine and that he was no longer living in Alaska at the time the phone calls were to have taken place.  

3.  He states that while on active duty in Germany he was diagnosed with high blood sugar and put on a special diet.  He maintains that he asked to be referred to a Medical Evaluation Board (MEB) at that time but was merely told to go to the Department of Veterans Affairs (VA).  He states that he has been treated for diabetes ever since and needs to be evaluated by a MEB.

4.  The applicant provides a copy of a 1992 Department of Veterans Affairs Compensation and Pension Exam Request in support of his request.  The document was not previously reviewed by the ABCMR; therefore, it is considered new evidence.

CONSIDERATION OF EVIDENCE: 

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001062166, on 11 December 2001.

2.  The Department of Veterans Affairs Compensation and Pension Exam Request noted that in April 1992, shortly after the applicant’s voluntary release from active duty under the Army’s Voluntary Early Release Program, the Seattle Regional Office requested the applicant be examined.  The document contains an entry under the “General Remarks” heading which indicates:

Injuries cervical and lumbar spine, left shoulder; hearing loss; T.B. (tine test)  Chronic throat problem?  Feet injuries; hypertension and diabetes; Desert Storm Vet – Review for obvious skin lesions (Leishmaniasis)

3.  The request form does not confirm that the applicant had actually been diagnosed with any of the conditions, but rather appears to indicate those were issues raised by the applicant, which needed to be addressed during an examination.

4.  As noted in the Board’s original consideration of the applicant’s case, he served on active duty between 29 December 1976 and 1 April 1992 when he was voluntarily released from active duty under the provisions of an Army voluntary release program, which was in effect at the time.

5.  As a result of the applicant’s voluntary release from active duty, he received a one time Special Separation Bonus in the amount of $41,438.52.

6.  Army policy and the Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), based on Public Law 102-190, 5 December 1991, as amended, prescribed the qualifications for entitlement to readjustment benefits for certain voluntarily separated members.  The Special Separation Bonus (SSB) was one of the monetary benefits associated with this separation incentive program.  The voluntary incentive program was designed to support the Army's drawdown and was available to Soldiers who were fully qualified for retention, but denied reenlistment by Department of the Army or Soldiers in pay grade E-5 who would have had 15 or more years on their scheduled separation date.  To be considered fully qualified for retention included the requirement that an individual be medically qualified for continued service.

7.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provided that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  

8.  Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered evidence of physical fitness.

9.  Records available to the Board indicate that the applicant, as noted in the original Board proceedings, enlisted in the Army Reserve following his separation from active duty.  However, in spite of his service in the Army Reserve, he never achieved sufficient points to have any of his years qualify for retirement purposes.

10.  On 13 April 1996 the applicant underwent a periodic physical examination, which noted, among other things, that the applicant was overweight, suffering from lower back and foot pain, and that he was on oral medication for diabetes.  The evaluating physician noted that the applicant should be seen by an optometrist and an audiologist and asked that he “bring in medical info from [his] private doctor.”  The evaluating physician found the applicant not qualified for continued service and referred the applicant to a Medical Evaluation Board.  The evaluating physician also issued the applicant a temporary profile.  He cited the applicant’s back pain, foot pain, and diabetes as the basis for the temporary profile.

11.  On 8 May 1996 the applicant was notified, via certified mail, that his battalion commander was initiating action to administratively separate the applicant from the United States Army Reserve (USAR) under the provisions of Army Regulation 135-178, Chapter 12, based on his “unfitness for retention as indicated in [his] recent medical examination….”  The letter informed the applicant that he had 30 days to submit a request for continuance in an active USAR status and that failure to submit such a request for continuance would not delay the separation action.

12.  The applicant signed for the certified mail, at his home address in Alaska, on 9 May 1996.

13.  The applicant’s file does contain a 29 May 1996 memorandum from the applicant’s company commander, through his battalion commander, to the 9th Army Reserve Command in Honolulu, Hawaii, recommending the applicant be retained in the United States Army Reserve.  The memorandum does not indicate that the recommendation was being made in response to a request from the applicant to continue in an active USAR status.

14.  A 13 June 1996 memorandum to the 9th Army Reserve Command from the applicant’s battalion commander indicated that the applicant had not responded to the notification that he needed to submit a request if he wished to be continued in an active USAR status.  The memorandum also noted that three attempts to contact the applicant telephonically were not successful.  As such, the battalion commander requested that orders be issued discharging the applicant for failing to meet medical retention standards.

15.  Orders were issued on 23 September 1996 and the applicant was discharged.

16.  Title 10, United States Code provides for disability processing of Reserve Component soldiers who incur or aggravate an injury or disease in the line of duty while performing inactive or active duty for training.  

17.  Army Regulation 635-40 states that in order for soldiers of the Reserve Components to be compensated for disabilities incurred while performing duty for 30 days or less, there must be a determination by a Physical Evaluation Board that the unfitting condition was the proximate result of performing duty.

18.  Army Regulation 635-40 states, in effect, that Reserve Component soldiers will be separated from the Reserve when they no longer meet medical retention standards.  Such separation will be without benefits if the unfitting condition was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

19.  Army Regulation 135-178 (Separation of Enlisted Personnel), Chapter 12, then in effect, provided for the administrative discharge of enlisted Soldiers from the USAR for a variety of reason, including those who were determined to no longer qualify for retention by reason of medical unfitness.  

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, that he had any unfitting medical condition, which would have warranted physical disability processing at the time he was voluntarily released from active duty in 1992.

2.  The fact that the applicant was released from active duty under the voluntary separation program in effect at the time supports a conclusion that he was medically fit for retention at the time.

3.  Although the 1992 document, provided by the applicant from the Department of Veterans Affairs, does not confirm that the applicant was suffering from diabetes, even if such a diagnosis had been made at that time, it would not have been evidence that the applicant should have been referred for disability processing at the time of his voluntary release from active duty.

4.  While the applicant may have subsequently been diagnosed with conditions (diabetes, back and foot pain), which were considered unfitting for retention in the USAR, there is no evidence that those conditions were incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training while the applicant was a member of the USAR.

5.  Any medical conditions, which the applicant may have incurred prior to his enlistment in the USAR, even if such conditions were incurred during his period of active military service, would have been considered “pre-existing” and would not have served as a basis for disability retirement from the USAR.

6.  The fact that the applicant did not appear before a MEB is not evidence of any error or injustice.  There is no evidence, and the applicant has not provided any, which indicates that his medical conditions were incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training while the applicant was a member of the USAR, and as such there would have been no basis for referring the applicant to a MEB, even though his evaluating physician may have recommended such a referral.

7.  The applicant’s argument that he did not receive the telephone calls noted in the Board’s original consideration of his case, or that he had relocated by the time the last call was to have taken place, is not evidence of any error or injustice in his USAR discharge action.  The evidence indicates that the applicant signed for the 8 May 1996 certified letter notifying him that he was being processed for administrative separation actions as a result of not meeting medical retention standards.  As such, the applicant should have been well aware of the ramification of failing to take some sort of action to respond to the notification.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JHL  __  __AAO__  __RJW__  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 to amend the decision of the ABCMR set forth in Docket Number AR2001062166, dated 11 December 2001.

		___Joann H. Langston___
		        CHAIRPERSON

INDEX

CASE ID	AR2003089134	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030122	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.