AR20150009755

BOARD DATE: 30 June 2016

DOCKET NUMBER: AR20150009755

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

__x______ __x______ _x__ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

BOARD DATE: 30 June 2016

DOCKET NUMBER: AR20150009755

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.

BOARD DATE: 30 June 2016

DOCKET NUMBER: AR20150009755

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 his military records to show he was medically retired.

2. The applicant states his original orders were for medical disqualification, not allowing him to complete the required 20 years for full retirement. He was only allowed to complete 18 1/2 years, with credit for 15 years, which results in a lower retirement pay.

3. The applicant provides copies of:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 27 October 1967
* Honorable Discharge Certificate (U.S. Navy Reserve), dated 29 July 1970
* DA Form 3349 (Physical Profile), dated 1 February 1997
* Outpatient Clinic Visit Addendum for Part II Physical, dated
20 March 2002
* DA Form 3349, dated 28 March 2002
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 17 April 2002
* Letter from the 1st Battalion, 3rd Brigade, 98th Division
* Orders 108-003, Headquarters, 98th Division (Institutional Training), dated 18 April 2003
* Notification of Eligibility (NOE) (Selected Reserve 15 year letter), U.S. Army Reserve (USAR) Personnel Command, dated 24 November 2003
* DA Form 705 (Army Physical Fitness Test Scorecard)
* DA Form 2-1 (Personnel Qualification Record)
* Medical Records

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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 had prior enlisted service in the U.S. Navy (USN) from
30 July 1964 to 27 October 1967. On 28 October 1967, he enlisted in the USNR and served until 29 July 1969 when he was transferred to the Inactive Reserve.

3. He had a break in service from 30 July 1970 to 27 April 1990. On
28 April 1990, the applicant enlisted in the USAR.

4. A DA Form 3349, dated 1 February 1997, shows a permanent profile for a tear to his right medial meniscus (surgery) which was given a PULHES rating score of L (lower extremities) – 3.

5. The applicant provides an Outpatient Clinic Visit Addendum for Part II Physical, dated 20 March 2002. The document states:

a. The applicant is here for a completion of his exit physical. He is a
reservist here temporarily on active duty. He completed Part I and Part II of his physical in November 2001.

b. He had some interval changes concerning a mild flare-up of his left knee
degenerative joint disease for which he has seen physical therapy and had some improvement.

c. He has also had some exacerbation of his left shoulder rotator cuff
syndrome with impingement for which he has also seen physical therapy.
6. A DA Form 3349, dated 28 March 2002, shows the applicants permanent profile of L-3 was changed to L-2, but his U (upper extremities) rating was changed from U-1 to U-2 for left shoulder rotator cuff syndrome with impingement.

7. The applicant provided a copy of DA Form 705 that shows he passed his Army Physical Fitness Test in September 2000, March 2001, September 2001, and September 2002.

8. A DA Form 4187 (Personnel Action), dated 24 March 2003, shows the applicant was eligible for retirement due to a medical disability.

9. On 18 April 2003, the applicant received orders involuntarily reassigning him from the Selected Reserve to the Retired Reserve due to a medical disqualification. He completed 15 years, 2 months, and 28 days of qualifying service for a 15-year Reserve Retirement.

10. A letter from the 1st Battalion, 3rd Brigade, 98th Division, undated, provided by the applicant, states:

a. Based on information he provided to the Reserve recruiter, he had 6 years
of Naval service and should have been able to complete the additional 14 years by age 60 and qualify for a 20-year letter and hence a pension. However, while the applicant did have a 6-year enlistment in the USN, he completed only 3 years of active duty and spent the remaining 3 years in the Inactive Naval Reserve where he earned no points during that time.

b. The applicant will only have 17 good years for retirement when he reaches
his mandatory removal at age 60. He should never have been allowed to enlist in the USAR in the first place.

c. He was assured that a waiver was available to him to get the additional
years he needed to retire. It appears that in reality, nothing has been done to alleviate this situation.

11. On 24 November 2003, the applicant received his NOE for retired pay at age 60. The letter stated:

a. As a Selected Reserve member with at least 15 years qualifying service, you are eligible under legislation (Title 10, United States Code, section 12731, Physical Disability not incurred in the line of duty) to apply for retire pay on attaining age 60. Your eligibility was determined based on the following qualifications:

* you are not eligible for retention in the Selected Reserve
* you have completed at least 15 years of qualifying service
* you have completed the last 8 years of qualifying service while a member of a Reserve Component
* you have requested transfer to the Retired Reserve

12. On 23 February 2005, the applicant reached age 60.

13. A DA Form 5016 (Chronological Statement of Retirement Points) shows he completed 15 years, 2 months, and 28 days of qualifying service toward non-regular retirement.

REFERENCES:

1. Army Regulation 40-501 (Standards of Medical Fitness) provides 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. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. Paragraph 9-12 states Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 are eligible to request referral to a physical evaluation board (PEB) for a determination of fitness. Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB liaison officer at the medical treatment facilities. Once a Soldier requests in writing that his case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USAR Regional Support Command or the Army Human Resources Command Surgeons office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards.

2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and 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 office, grade, rank, or rating. It provides for medical evaluation boards (MEBs), which are convened to document a Soldier’s medical status and duty limitations insofar as duty is effected by the Soldier’s status. A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. The disabling condition must have been incurred or aggravated while the Soldier was entitled to basic pay.

a. Paragraph 3-1 provides that 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 member reasonably may be expected to perform because of his office, rank, grade or rating. The Army must find that a Solider is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

b. Paragraph 3-2b provides for retirement or separation from active service. This provision of regulation states that 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 regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

2. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), paragraph 6-1, provides that Reserve Soldiers may request transfer to the Retired Reserve if they are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.

3. Title 10, United States Code (U.S.C.), section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30 percent. Section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.

4. Title 10, U.S.C., section 12731, provides the age and service requirements necessary to qualify for non-regular (Reserve) retired pay at age 60. It states individuals are eligible to receive retired pay at age 60 upon application if they have completed 20 or more years of qualifying service while a member of a Reserve Component. This section states the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under this chapter.

5. Title 10, U.S.C., section 12731 (Special Rule for Members with Physical Disabilities Not Incurred in Line of Duty) states in the case of a member of the Selected Reserve of a Reserve Component 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.

DISCUSSION:

1. By law and regulation, Reserve Component members normally are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement. A qualifying year of service for non-regular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points.

2. However, at the time the applicant was separated, a member of the Selected Reserve who was medically disqualified for continued service in a Reserve Component could be considered as having met the service requirement and could be issued a NOE for Non-Regular Retired Pay at Age 60, 15-Year Letter, if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes.

3. The evidence of record in this case confirms the applicant completed a total of 15 years, 2 months, and 28 days of qualifying service for non-regular retirement before he was transferred to the Retired Reserve in 2003 for medical disqualification. All of his qualifying years of service were in a Reserve Component and in the USN in the active component. As such, he met the statutory requirement for receipt of a 15-year letter.

4. The applicant contends that he should be entitled to a medical retirement due to left knee degenerative joint disease and left shoulder rotator cuff syndrome. However, there is no evidence these injuries were incurred in the line of duty and warranted referral to the disability evaluation system.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009755

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009755

6

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2