IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150012716 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150012716 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. IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150012716 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 correction of her records to show she was medically discharged from the U.S. Army Reserve (USAR). 2. The applicant states, in effect, she was injured while on active duty and later that injury caused medical issues. She missed some drill appointments due to her injury and was released 2 months later and placed in the Individual Ready Reserve due to a lack of promotion points. There was an issue of sexual harassment by her command. She has been seen by private doctors for her injuries. She became addicted to pain medication which caused financial, emotional, and spiritual problems. The Department of Veteran Affairs (VA) denied her treatment for service-connected post-traumatic stress disorder and military sexual trauma. 3. The applicant does not provides any additional evidence; however, she indicates on her application that she provided medical records as evidence. 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. After having prior enlisted service in the USAR, the applicant was appointed as a Reserve commissioned officer on 11 May 1990. 3. A memorandum, subject: Notification of Promotion Status, issued by the U.S. Total Army Personnel Command, St. Louis, MO (currently the U.S. Army Human Resources Command), dated 30 July 1998, informed her that she was not selected for promotion. 4. Orders C-08-827733, issued by USAR Personnel Command, St. Louis, MO, dated 10 August 1998, show she was voluntarily released from the USAR Control Group (Reinforcement), effective 10 August 1998. 5. Orders 341-315, issued by Headquarters, U.S. Army 90th Regional Support Command, North Little Rock, AR, dated 7 December 1999, show` she voluntarily requested transfer to the Retired Reserve. 6. Her medical records were not available and contrary to her statement, she did not provide any medical records or evidence of the existence of an injury or illness that would have warranted her entry into the Army Physical Disability Evaluation System (PDES) during her period of active service. 7. On 28 October 2015, the Case Management Division, Army Review Boards Agency, sent a letter to the applicant asking her to provide medical records documenting her claimed conditions. She did not respond. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES. This regulation establishes the Army PDES according to the provisions of United States Code, Title 10, Chapter 61, and Department of Defense Directive 1332.18. It sets forth policies, responsibilities, and procedures that apply 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. a. Chapter 3 states under the laws governing the Army disability system, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits: * the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training * the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence b. Chapter 3 also states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. c. Chapter 8 states Soldiers of the Reserve Component (RC) eligible for processing under this paragraph are those who incur a disability from an injury determined to be the proximate result of performing— (1) Annual Training, active duty special work, active duty for training with or without pay, or temporary tour of active duty under a call or order that specifies a period of 30 days or less, to include full-time training duty under Title 32 United States Codes 502f, 503, 504, and 505; (2) Inactive duty training (IDT) including IDT without pay under competent orders; while enroute to or from IDT, a Soldier of the RC is not performing duty; therefore, Reservists who incur injuries while in a travel status to IDT are not eligible for referral into the disability system. However, in exceptional cases, where there is evidence that the Soldier may actually be performing duty while in a travel status, the case should be referred to the physical evaluation board for consideration of eligibility. d. Chapter 8 also states when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of their office, grade, rank, or rating because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40–501. A Soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing duty. 2. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, a physical evaluation board rates all disabilities using the VA Schedule of Rating Disabilities. 3. United States Code, Title 38, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. The applicant contends she was injured while on active duty and she also experienced sexual harassment and military sexual trauma; however, her medical records were not available and contrary to her statement, she did not provide medical records or evidence of the existence of any injury or illness that would have warranted her entry into the PDES during her period of active service. The evidence shows she requested to be transferred to the Retired Reserve. 2. The available evidence does not make any reference to sexual harassment or military sexual trauma. 3. In reference to her contention that she was denied treatment from VA, operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and effects the individual's civilian employability and/or social functioning. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings or finding other medical conditions to be service connected. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012716 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012716 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2