ABCMR Memorandum of                                                             AR2002080966
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            03 JULY 2003                  
	DOCKET NUMBER:   AR2002080966

	I certify that hereinafter is recorded the record of consideration 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:

| Mr. Raymond V. O'Connor, Jr. | | Chairperson
| Ms. Kathleen A. Newman | | Member
| Mr. Patrick H. McGann, Jr. | | Member

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that two additional years of creditable service, including the associated 50 points, be added to his military service for retirement purposes.  He also asks that his medical records be reviewed “for establishment of a military related medical condition.”

APPLICANT STATES:  That in 2000 he “moved from the 96^th ARCOM [Army Reserve Command] to the IRR [Individual Ready Reserve]” and subsequently requested reassignment from the IRR to a Troop Program Unit (TPU).  He notes that he was unable to be assigned to a TPU because “the ones that I requested had the billets cut.”  He states that he then faxed a request to the United States Army Reserve Personnel Command asking to be transferred to the Retired Reserve, but received no response.  He notes that “this year” he received a copy of his “Points Card” indicating that he had received only 8 membership points in 2001 and no points in 2002.  Upon telephoning the United States Army Reserve Personnel Command he discovered that he had been discharged.  He states that he received no information action had been taken to discharge him and if he had received such notification he “would have re-applied for retirement.”  He maintains that the inaction by the United States Army Reserve Personnel Command has caused him undue problems and “extraordinary actions on [his] part to correct.”  He states that he was erroneously discharged when he was ready and able to serve and “would not throw all of this away.”  As such, he is requesting that he “be credited with two years of service and points for the error at 50 points per year…and immediately be placed in [the] Retired Reserve.”

The applicant also states that he was given a profile for his back, is unable to “run two miles any longer, cannot do over 30 sit-ups, [has] trouble standing for long period of time…can no longer lift weights or larger objects because of the strain on the back and [is] taking aspirin for the back pain.”  In view of these problems, the applicant is “petitioning for a medical review board to review [his] medical case.”

Although the applicant indicates that he was submitting a copy of his “Chronological Statement of Retirement Points,” the statement was not included with records provided to the Board.  Additionally, he submitted no medical records, but notes his medical records were “sent to the IRR address by [his] former unit.”  He submits no other evidence in support of his request. 

EVIDENCE OF RECORD:  The applicant's military records show:

He was appointed as a second lieutenant in the United States Army Reserve on 29 July 1977.  After serving on active duty until 1982, he returned to service as a 

member of various United States Army Reserve Component elements.  In February 1996 he was promoted to lieutenant colonel.

In November 1997 he was voluntarily assigned to the 96^th Regional Support Command and in April 1998 he received his “twenty year letter” notifying him that he had completed the required years of qualifying Reserve service and was eligible for retired pay at age 60.  His notification letter reminded him that he was required to “earn a minimum of 50 points each retirement year to retain active status” and that his “eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation on [his] part.”

According to documents contained in the applicant’s Official Military Personnel File, on 1 June 2000 the applicant’s records were “flagged” (suspension of favorable personnel actions), when he failed the Army’s physical fitness test and was placed in a weight control program.  Both flagging actions indicated that the applicant was assigned to the 96^th Regional Support Command at the time.

A “Request Pertaining to Military Records” notes than on 1 June 2000 that an official from the 96^th Regional Support Command requested “all military records” pertaining to the applicant for the purpose of “transfer from IRR to TPU.”

A review of the applicant’s retirement point history notes that during his retirement year 29 July 1999 through 28 July 2000 he acquired only 39 points and that as of his retirement year ending on 28 July 1999 he had accumulated 22 years of qualifying service for retirement purposes.

Orders issued by the 96^th Regional Support Command, on 30 August 2000, indicate the applicant was voluntarily reassigned to the United States Army Reserve Control Group Reinforcement (commonly referred to as the IRR – Individual Ready Reserve).  The effective date of the transfer was 1 August 2000.

On 14 February 2001 the United States Army Reserve Personnel Command issued orders honorably discharging the applicant from the United States Army Reserve.  Army Regulation 135-175 was cited as the authority for the discharge. The effective date of discharge was 12 February 2001, one day prior to his 49^th birthday.

The applicant’s retirement point statement indicates that he accumulated 8 points, based on membership, between 29 July 2000 and 12 February 2001.  There is no indication he acquired any additional points during that period as a result of inactive duty, extension course, active duty for training, etc.

On 10 September 2002 the applicant faxed an undated letter to the United States Army Reserve Personnel Command requesting “immediate assignment to the Retired Reserve” and noted that he was “currently erroneously listed as discharged.”  The faxed copy contains a hand written note, signed by the applicant, indicating that he had sent the letter early and requested a confirmation call to confirm receipt “because the last time [he] sent this in [he] was discharged” and “had to follow up with no results yet.”

On 13 September 2002 the applicant’s February 2001 discharge orders were voided, and on 25 September 2002, orders were issued reassigning the applicant from the United States Army Reserve Control Group Reinforcement to the Retired Reserve effective 1 October 2002, as a result of “non-participation.”

Army Regulation 135-175 pertains to the separation of Reserve Component soldiers.  Chapter 4 lists a variety of reason that a member of the Army Reserve my be removed from an active status “with or without the officer’s consent.”  Among the reasons listed as a basis for removal from an active status are; medical unfitness, maximum age (in the applicant’s case age 60), length of service (in the applicant case 30 years of commissioned service), and refusal to provide a mailing address.  Chapter 4 notes that removal from an active status will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member), or, if eligible, transfer to Control Group (Inactive).  None of the categories listed in Chapter 4 appear to apply to the applicant.

Department of Defense Instruction 1215.00, paragraph 5.3.3. mandates that reservists who have qualified for retirement, are required to attain 50 points annually during their anniversary year to be retained in the Individual Ready Reserve.  The applicant’s anniversary year began, and ended, annually in July.

There were no service medical records available to the Board, or provided by the applicant.  

Army Regulation 635-40 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.  When a solider 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 is an indication that the soldier is fit for duty.  

Army Regulation 635-40 states, in effect, that Reserve Component soldier will be separated from the Reserves when they no longer meet medical retention standards.  Such separation will be without benefits if the unfitting condition results from an injury which is due to the intentional misconduct or willful neglect of the individual, if the disability was incurred during a period of unauthorized absence, or if the disability 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.

Selected Reserve and National Guard members who served on regular active duty are eligible for the same VA benefits as other veterans.  The member must meet the same length of service required for any benefits.  Additionally, disability compensation for Reserve Component members may all be based on non-active duty service when the individuals disease or injury was incurred on active duty for training, or an injury, heat attack or stroke incurred during inactive duty for training, when such injuries have been determined to be “service-connected.”  Veterans Benefits Administration (VBA) personnel make service-connected disability determinations in response to claims for disability compensation, and certain other VA benefits.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  It is unclear why the applicant was honorably discharged on 13 February 2001.  The authority for the separation, Army Regulation 135-175, is a general authority encompassing a variety of reasons for separation and his discharge orders do not specifically identify the actual basis for his discharge.

2.  However, the Board does note that the applicant admits in his application that he requested transfer to the Retired Reserve after he was unable to secure a billet in a Troop Program Unit in 2000.  The 1 June 2000 document requesting all of the applicant’s military records, initiated by a member of the 96^th Regional Support Command for the purpose of “transfer from the IRR to TPU” supports the applicant’s statement that he had applied for transfer to a Troop Program Unit.

3.  It is possible that the United States Army Reserve Personnel Command subsequently inadvertently discharged the applicant in February 2001, rather than transferring him to the Retired Reserve, as the applicant indicates he requested.  The fact that he was discharged one day prior to his birthday may be purely coincidental, as there is no evidence which suggests that any of his records had incorrectly indicated that he had reached his maximum age for retention.

4.  Additionally, the Board notes that the applicant did not acquire any additional points, beyond his membership points, between 29 July 2000 and 12 February 2001, further supporting his contention that he had requested transfer to the Retired Reserve.

5.  While the applicant may have expended considerable effort to have his discharge revoked and be ultimately transfered to the Retired Reserve, the Board concludes that there is no basis to credit him with the two additional years for retirement purposes, nor award him the additional retirement points.  The Board contends, based on available evidence, and statements provided by the applicant in his request, that his intention was to be transferred to the Retired Reserve.  It appears that an error occurred when he was discharged rather than transfers to the Retired Reserve and that error does not now serve as a basis to credit him with additional service or points, merely to compensate him for that error, or for the effort it took him to resolve the error.

6.  The Board notes that whether the applicant was discharged or transferred to the Retired Reserve, his entitlement to retired pay at age 60, and entitlement to benefits associated with his military service, would not have been impacted.  While the Board could correct his records to show that he was transferred to the Retired Reserve in February 2001, rather than discharged, no benefit would be served.

7.  Regarding the applicant’s petition that his service medical records be reviewed “for establishment of a military related medical condition,” the Board contends that the more appropriate agency for that determination would be the Department of Veterans Affairs.  The fact that the applicant has presented no evidence which suggests that he had any medical conditions which warranted referral for disability processing, and the fact that he continued to acquire retirement points through July 2000 suggests that the applicant was fit for military service.

8.  The evidence available to the Board indicates he did not have any medically unfitting disability, which required physical disability processing at the time of his 

discharge in 2001.  The fact that he may not have passed the Army Physical Fitness Test is not evidence of medical unfitness.  Therefore, there is no basis for physical disability retirement or separation.

9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__RVO__  __KAN __  __PHM__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID | AR2002080966
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 20030703
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. |