IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150007577 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: 29 March 2016 DOCKET NUMBER: AR20150007577 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. Enclosure 1 IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150007577 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, a medical retirement and personal appearance before the Board at a hearing in San Francisco, CA. 2. The applicant states: a. He was medically separated after 11 years of faithful service for depression. He appeared before a review board at his parent unit command under the pretense that he would be medically retired. Upon receiving his separation documents he was told by the unit administrator that he would receive early medical separation pay and monthly retirement pay within the typical 60-90 days. He has received neither from the Department of the Army. He was under the false assumption that the Department of Veterans Affairs (VA) was allocating the adjusted medical pay for his conditions incurred and aggravated while in the service. b. Under Federal law the VA doesn't allocate Army retirement pay, as his ex-parent command unit administrator assured him. His unit has washed their hands of this matter and keeps referring him to consult the VA. He has a master's degree and he is willing to be recalled to active duty to complete his time for retirement as an officer in any capacity the Government sees fit. The VA issued him a determination of disability letter under his new legal name. Enclosure 2 3. The applicant provides copies of: * Enlisted Personnel Qualification Record * DA Form 3349 (Physical Profile) * Notification of Medical Disqualification memorandum * Disposition Election for Medical Disqualification memorandum * Chronological Statement of Retirement Points * Two DA Forms 4858 (Developmental Counseling Form) * DA Form 4187 (Personnel Action) * Orders Number 11-103-00058 * Decree Changing Name 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 the cases 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's records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he enlisted in the U.S. Marine Corps (USMC) on 5 June 2001 and he was honorably released from active duty on 4 June 2005 and transferred to the USMC Reserve (USMCR) to complete his remaining service obligations. 3. His DD Form 214 shows he completed 4 years of active service and his Reserve obligation termination date was on 2 July 2008. He served in the USMCR from 5 June 2005 to 2 July 2008. 4. His records contain a DD Form 214 that shows he entered active duty as a member of his USMC unit on 1 December 2005 and subsequently served in Iraq from December 2005 to November 2006. He was honorably released from active duty on 30 November 2006 and transferred to a USMC unit. 5. He enlisted in the U.S. Army Reserve (USAR) on 12 March 2009 and he held military occupational specialty 35F (intelligence analyst). He was assigned to Headquarters and Headquarters Company, 351st Civil Affairs Command, Mountain View, CA. 6. He provided copies of: a. A DA Form 3349, dated 23 September 2010, showing he was assigned a permanent profile of "1-1-1-1-1-3" for depression and post-traumatic stress disorder. b. A Notification of Medical Disqualification memorandum, dated 10 October 2010, notifying the applicant's command that based on one or more medical conditions the applicant was disqualified for retention in the USAR. The memorandum also advised that the applicant could either elect to be transferred to the Retired Reserve, if eligible; or be discharged; or be considered by a non-duty related (NDR) Physical Evaluation Board (PEB). c. A Disposition Election for Medical Disqualification memorandum, dated 7 November 2010, showing he requested reassignment to the Retired Reserve (the memorandum noted he must have at least 15 years, but less than 20 qualifying years of service for retired pay purposes) and an honorable discharge from the USAR. d. His Chronological Statement of Retirement Points, dated 28 January 2011, crediting him with 1 qualifying year (12 March 2009 through 11 March 2010) of service for retirement. e. A DA Form 4858 showing he was counseled on 5 February 2011 on his decision to be separated from the USAR after being found medically unfit for retention. f. A DA Form 4187, dated 15 February 2011, in which the applicant requested a medical discharge in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), paragraph 15-1(k). g. A DA Form 4858 showing he was counseled on 5 March 2011 on his decision to be separated from the USAR after being found medically unfit for retention. h. A Decree Changing Name showing he was granted a court-ordered name change on 28 October 2014. 7. On 13 April 2011, Headquarters, 63rd Regional Support Command published Orders Number 11-103-00058 honorably discharging him from the USAR, under the provisions of Army Regulation 135-178, effective 12 May 2011. 8. A Chronological Statement of Retirement Points, dated 10 March 2016, credits him with 2 qualifying years (12 March 2009 through 12 May 2011) of service for retirement. REFERENCES: 1. Army Regulation 135-178, in effect at the time, prescribed the policies for the separation of enlisted Soldiers from the Reserve Components (RC). Chapter 15 of the regulation provided for separation when it had been determined that an enlisted Soldier was no longer qualified for retention by reason of medical unfitness. It required that a Soldier be notified if he/she was determined to be medically disqualified for continued service in the USAR. Along with the notification, the Soldier was required to acknowledge the notification and elect one of the following options on the notification of medical unfitness for retention and election of options: * Request reassignment to the Retired Reserve in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), if he/she had completed 20 qualifying years, or * Request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 (15 year retirement), or * Request an honorable discharge from the USAR, or * Request an informal PEB to review their medical records for a final determination of their medical fitness for retention 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, governed 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 (PDES), 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. 3. Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, in effect at the time, provided standards for medical retention and separation, including retirement. Basically, members with conditions as severe as those listed in that chapter were considered medically unfit for further military service. Normally, Reserve enlisted Soldiers who did not meet the fitness standards set in chapter 3 would 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 would be transferred to the Retired Reserve only if eligible and if they applied for transfer. 4. Title 10, U.S. Code, section 12731b states, in the case of a member of the Selected Reserve of a RC who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20 years of service computed under section 12732 of this title. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required 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's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 6. Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION: 1. Most of the applicant's medical records are not available for review with this case. However, based on the available documents he provided, it appears a review of his medical records revealed a medical condition that resulted in disqualifying him for retention in the USAR. His higher headquarters notified him of his medical disqualification and provided him with his options. He made two elections: reassignment to the Retired Reserve with early qualification to receive retired pay at age 60 (if he had at least 15 but less than 20 qualifying years of service) or an honorable discharge. 2 . The applicant confuses a PEB under the PDES and an NDR PEB. a. To be eligible for a duty-related medical processing, a RC Soldier not on active duty must have a medically unacceptable condition and the medical condition must be related to service either by being incurred while on active duty or when not incurred while on active duty, have permanently aggravated by military service. A duty-related condition is normally validated by an approved line of duty determination. b. An NDR PEB is a non-line of duty PEB that reviews the Soldier's condition solely for a determination of fitness for continued service in the RC. 4. In the applicant's case, the Command Surgeon reviewed his medical records and determined he was unfit for retention in the USAR. He was notified, counseled, advised, and presented with his options, and he was discharged from the USAR on 12 May 2011. 5. The applicant may have applied for and received service-connected disability from the VA. However, an award of a VA service-connected disability rating is not sufficient evidence to conclude that he should have received medical compensation from the USAR. The VA is not required by law to determine medical unfitness for further military service. The VA 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, his medical condition of depression, although not considered medically unfitting for military service at the time of processing for discharge, may qualify him for VA benefits based on an evaluation by that agency. 6. With respect to his request for a personal appearance before a travelling panel in San Francisco, CA: a. The ABCMR does not travel to conduct personal hearings. The applicant submitted his application to the ABCMR using the DD Form 293 (Application for the Review of the Discharge from the Armed Forces of the United States). This form is used by the Army Discharge Review Board, which has, in the past, conducted travelling panels. The ABCMR accepted his DD Form 293 in lieu of the DD Form 149 (Application for Correction of Military Records) that is used by the ABCMR. b. The ABCMR may hold a personal appearance hearing, if warranted, in Arlington, VA. Nevertheless, by regulation, an applicant is not entitled to a hearing before the ABCMR. Personal hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings @#!CASENUMBER Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007577 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1