IN THE CASE OF: BOARD DATE: 30 August 2011 DOCKET NUMBER: AR20110000185 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 that his medical discharge be changed to a physical disability retirement and rated accordingly. 2. The applicant states: * he received an evaluation from his unit stating he was unfit for duty and would receive a medical discharge * he asked for a medical retirement, but he was informed he was not eligible because he did not have 15 years of service * after doing research he has found different information * by law, if a Solder is found unfit for duty, the Soldier must be rated, which did not happen in his case * he holds no hard feelings towards anyone, he just wants his records corrected 3. The applicant provides: * Standard Form 507 (Medical Record), dated 16 September 2009 * DA Form 3349 (Physical Profile), dated 21 September 2009 * medical record review, dated 21 October 2009 * notification of medical unfitness for retention, dated 2 November 2009 * DA Form 4856 (Developmental Counseling Form), dated 30 June 2010 * Orders 10-181-00128, dated 30 June 2010 * information regarding military disability (medical) separations and retirements 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 6 August 2000 with 4 years, 7 months, and 27 days of prior active service in the Regular Army. He reenlisted in the USAR for an indefinite term on 7 March 2004. 3. The applicant was ordered to active duty in support of Operation Iraqi Freedom effective 22 March 2005. He returned to the United States on 11 July 2005. 4. On 13 September 2005, the applicant was released from active duty to the control of the USAR. 5. The applicant's medical records show the 81st Regional Support Command Assistant to the Command Surgeon completed his review of the applicant's periodic health assessment with physical examination on 16 September 2009. He made the following comments/findings: * post-traumatic stress disorder (PTSD), anxiety, panic attacks * major depressive disorder * obstructive sleep apnea * left substantial hallux valgus; left foot and ankle pain * low back pain, significant left ankle and foot pain; multilevel lumbar degenerative changes; L4-5 moderate central canal stenosis, L4-5 mild bilateral impingement of the L5 nerve roots, L3-4 bilateral neural foraminal stenosis * L3-4 broad based bulging disc with annular tear, encroaching spinal canal * L3-4 spondylolysis; L4-5 grade 1 spondylolisthesis * right carpal tunnel with surgery planned for June 2009 * right shoulder pain with signs and symptoms of impingement 6. The assistant to the command surgeon stated the applicant did not meet medical retention standards. The applicant was placed on a permanent physical profile with a recommendation to be evaluated by a medical evaluation board (MEB) and a physical evaluation board (PEB). 7. 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 foot and ankle pain * right shoulder pain 8. The applicant's commander was instructed to begin the process to separate him in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 9. The available records do not show the onset of any of the conditions for which he was diagnosed and there is no line-of-duty determination contained in his official military records. 10. On 2 November 2009, the applicant received a Notification of Medical Unfitness for Retention. He was told that as a result of his medical evaluation, he was medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501, chapter 3. He was also told he was required to complete an Acknowledgement of Notification of Medical Unfitness for Retention and Elections Option indicating his option regarding his medical disqualification. He was told he had 30 days in which to return his response. Failure to respond within 30 days would constitute a waiver of all rights and he could be discharged with an honorable characterization of service. 11. The applicant submits the front side of a DA Form 4856 showing he was counseled by his battalion commander on 30 June 2010 regarding his election for discharge in lieu of a medical board. The DA Form 4856 states he completed a periodic health assessment, was notified of his medical unfitness, and elected to be honorably discharged in lieu of medical board proceedings. [The reverse side of this form provides a space for the counseled individual to make a comment and to agree or disagree with the counselor]. The DA Form 4856 is not contained in his official military records. 12. On 30 June 2010, 81st Regional Support Command Orders 10-181-00128 were published discharging him from the USAR effective 2 September 2010 under the provisions of Army Regulation 135-178 (Army National and Army Reserve Enlisted Administrative Separations) for medical unfitness due to "no fault of the Soldier." He had completed 9 years and 25 days of qualifying service for a Reserve retirement. 13. There is no evidence and the applicant provided none to show he requested a waiver for retention in the USAR under the provisions of Army Regulation 135-178, after he was determined to be medically unfit to meet the standards of Army Regulation 40-501, chapter 3. He submits information from an Internet website pertaining to the requirements for military disability (medical) separations and retirements. 14. Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components. It states separation will be accomplished by separation authorities when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is granted a waiver or is eligible for transfer to the Retired Reserve. 15. 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. 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. 16. Army Regulation 40-501, chapter 3, provides standards for medical retention and separation, including retirement. Basically, members with conditions as severe as those listed in this chapter are considered medically unfit for further military service. Normally, Reserve enlisted Soldiers who do not meet the fitness standards set in chapter 3 will be transferred to the Retired Reserve in accordance with Army Regulation 140-10 or be discharged from the USAR in accordance with Army Regulation 135-178. They will be transferred to the Retired Reserve only if eligible and if they apply for transfer. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions have been noted and his supporting evidence have been considered. 2. The applicant's records show he was notified that he was medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501, chapter 3. 3. His complete medical processing packet is not available (the complete DA Form 4856 and the command surgeon's determination are not available). His records do show he was provided the option of electing to go before a medical board or to be discharged and he elected the latter of the two. From the available documents it cannot be determined if he was offered the opportunity to appear before an MEB/PEB or just a fitness for duty PEB. 4. The available records do not show the onset of the conditions for which he was diagnosed and there is no line-of-duty determination contained in his official record. In the absence of evidence showing he was suffering from conditions that were incurred in the line of duty or while entitled to basic pay, it must be presumed that what the Army did in his case is correct. 5. In view of the foregoing, there is insufficient evidence that would warrant granting the relief requested. 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 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) AR20110000185 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110000185 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1