PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 26 March 2002
         DOCKET NUMBER: AR2001056493


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Mr. George Paxson		Chairperson
Ms. Deborah Jacobs		Member
Mr. Ronald E. Blakely		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that he be given a Fitness for Duty Evaluation (FFDE), that his transfer to the Retired Reserve be revoked, that he be returned to the Individual Ready Reserve (IRR), and that he be promoted to colonel in accordance with the 28 January 2000 Standby Advisory Board selection for such. He also requests, in effect, retirement points and pay for Reserve training he was prevented from participating in from 15 January 1999 to the present, and that a statement be placed in his record that Officer Evaluation Reports (OER) for that period of time be waived.

3. The applicant states, in effect, that he, an IRR Individual Mobilization Augmentee (IMA), underwent triple by-pass cardiac surgery on 10 September 1998. After recovery and convalescence, on 4 January 1999, he provided information on his surgery and fitness status to the U. S. Army Reserve Personnel Command (AR-PERSCOM) Command Surgeon. On 15 January 1999, the Command Surgeon published a memorandum to the applicant informing him that he should avoid severe levels of physical stress for at least six months and that a temporary code was placed in the personnel data base to show “temporary medical disqualification” pending a 6 month follow-up. The applicant understood from Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), chapter 5, section V (Temporary Medical Disqualification), that this would excuse him from drill attendance for six months and, if the Command Surgeon determined that his temporary medical disqualification would be longer than six months, he would be transferred to the Standby Reserve (active list). On 20 February 1999, he was given a temporary physical profile by a Reserve Medical Corps officer which specified no physical training or strenuous duty activities through 20 May 1999. On 3 June 1999, the AR-PERSCOM Command Surgeon requested records on the applicant’s medical condition. On or about
22 June 1999, the applicant provided medical records from his civilian doctors.

4. The applicant received a 13 July 1999 memorandum from the AR-PERSCOM Transition and Separation Branch notifying him that he had failed to accrue the required 50 retirements points between 10 April 1998 and 9 April 1999 to be retained in the active Reserve and was subject to discharge or transfer to the Retired Reserve due to non-participation. On 20 July 1999, the applicant requested a wavier of his non-participation due to his temporary medical disqualification.

5. The AR-PERSCOM Command Surgeon sent a memorandum to the applicant, dated 19 July 1999, notifying him that he did not meet the medical fitness standards for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-21a, due to cardiac problems. The memorandum offered the applicant three options: transfer to the Retired Reserve, discharge, or


request a FFDE by an Army Medical Treatment Facility. The applicant responded on 20 August 1999, requesting an FFDE. No action was taken on this request.

6. An AR-PERSCOM memorandum, dated 3 September 1999, denied his non-participation waiver request since he had previously been granted a one-time waiver for retirement year ending 9 April 1995, during which time the applicant did not participate in Reserve training due to personal requirements when his wife passed away. In a 10 September 1999 letter, the applicant appealed the waiver denial based on his temporary medical disqualification which excused him from drill attendance. An AR-PERSCOM memorandum, dated 8 October 1999, denied his waiver appeal. In a 15 November 1999 letter, the applicant requested to know his options. An AR-PERSCOM memorandum, dated 29 November 1999, informed the applicant that he had the options of discharge or transfer to the Retired Reserve. In a 5 December 1999 letter, the applicant requested transfer to the Retired Reserve. This request was received at AR-PERSCOM but the applicant was erroneously discharged on 7 January 2000, effective
17 December 1999. On 21 March 2000, AR-PERSCOM corrected this error by voiding the discharge order and publishing an order to transfer him to the Retired Reserve, effective 21 March 2000.

7. On 28 January 2000, the applicant was considered by a Standby Advisory Board (STAB) against 1999 promotion board selection criteria based on corrected records concerning promotion eligibility educational requirements. He was selected for promotion to colonel. A U. S. Army Personnel Command (PERSCOM) memorandum, dated 6 October 2000, notified him of the STAB recommendation and that his date of rank would be 29 February 2000, the date the Senate confirmed the recommendations of the board. The promotion action was suspended due to the applicant being in a non-promotable status, being in the Retired Reserve.

8. The applicant’s military records show that he was an IRR Medical Services Corps Lieutenant Colonel with a date of rank of 30 May 1989, assigned in an IMA position as the Medical Plans and Training Officer, Office of the Chief, Army Reserve (OCAR), Pentagon, Washington, D.C. He had served in this capacity since approximately 11 September 1995. He received his 20-year letter on
20 November 1990, notifying him of his eligibility for retired pay at age 60. He was born on 12 April 1945. He had served in the Army Reserve in an enlisted status for 10 years, from 3 February 1969 through 9 April 1979. He was commissioned as a Reserve captain in the Medical Service Corps on 19 June 1979. His mandatory removal date for maximum length of service is 11 April 2005. As of 9 April 1998, he had 26 years qualifying for retired pay at age 60.



9. His 27^th year qualifying for retired pay began on 10 April 1998. As an IMA, he had typically been performing 27 to 75 days of Annual Training (AT) per year with up to 12 Inactive Duty for Training (IDT) days per year and 25 non-paid IDT days in the last year. Between 10 April 1998 and 1 August 1998, he performed no IDT or non-paid IDT. He attended a 13 day AT period from 2 to14 August 1998. On
10 September 1998, he underwent triple by-pass cardiac surgery, unrelated to military service. Following his surgery, he did not participate in any IDT or AT. The record confirms the chronology of events stated by the applicant.

10. The last OER he received that is in the record is a change of rater OER for the period 10 August 1997 through 30 June 1998, as an IMA officer attached to the OCAR as a medical plans and training officer. He subsequently performed annual training from 2 to14 August 1998, but no OER is on record for this duty.

11. Army Regulation (AR) 140-10 (Army Reserve, Assignments, Attachments, Details, and Transfers), paragraph 8.2c, defines temporary medical disqualification as soldiers temporarily disqualified from Ready Reserve participation because of prolonged illness or medical defects remedial within
6 months to 1 year and refers to AR 135-91, chapter 5, section V. Army Regulation 135-91 states that a soldier is temporarily medically disqualified when documentary evidence supports a finding of a medical defect or prolonged illness, which can be corrected in less than 1-year. Soldiers who allege temporary medical disqualification will be required to submit documentary evidence prepared by their health care specialist. Those who fail to produce the evidence within 30 days will be considered medically qualified and required to continue participating. When medical disqualifications can be corrected within less than 6 months, the soldier will be retained in the unit. Excused absence from unit training will be granted. When medical disqualifications can be corrected within 6 months to 1 year, transfer the soldier to the Standby Reserve (active list). When medical disqualifications cannot be corrected within 1 year, the soldier will be discharged or transferred to the Retired Reserve if eligible.

12. Army Regulation 40-501 (Standards of Medical Fitness) states, in pertinent part, that Ready or Standby Reservists temporarily disqualified because of a medical defect will be transferred to the Standby Reserve inactive list (or active list if required by law to remain a member of a Reserve Component) when the condition is considered to be remediable within 1 year from the date disqualification was finally determined. Reservists who are temporarily disqualified will be examined no later than 1 year from the date of transfer to the Standby Reserve. Those found qualified will be transferred back to the Reserve status they held before they were disqualified. Those disqualified will be discharged or may be transferred to the Retired Reserve if eligible. Paragraph
3-21a defines coronary heart disease as a condition that may render a soldier unfit for further military service.

13. Army Regulation 140-10, in pertinent part, provides 17 rules for removing a Reserve soldier from the IRR and the Standby Reserve. Removal by rule 2.1 is for non-participation by not attaining 50 retirement points per retirement year. Removal by rule 8 is for being medically unfit for retention according to
AR 40-501. Exception number 6 grants exception to rule 8 to retain soldiers whose medical defects are curable within 1 year from the date of disqualification and refers to Reservists temporarily disqualified for medical defects in accordance with AR 40-501.

14. Department of Defense Directive (DoDD) 1200.7 (Screening the Ready Reserve), in pertinent part, states that members of the Standby Reserve (active and inactive list) are not required to perform training. Department of Defense Directive 1235.9 (Management of the Standby Reserve) in pertinent part, states that members on the Active Status List, Standby Reserve, may participate in Reserve Training activities without pay, may earn retirement points, and are eligible for promotion.

15. Army Regulation 623-105 (Officer Evaluation Reporting System), paragraph 4-7, in pertinent part, states that OERs are required for IMA officers only when they have performed IDT or AT during the rating period.

16. The AR-PERSCOM Command Surgeon provided an advisory opinion which he states, in effect, that: 1) the term he used, “temporary medical disqualification,” was not meant in the same context as temporary medical disqualification as used in AR 135-91; 2) the applicant could have returned to
drill as early as December 1998 and was not denied participation in drill; 3) the applicant’s condition was not medically disqualifying until 19 July 1999;
4) Medical Evaluation Boards (MEB) or Physical Evaluation Boards (PEB) are not conducted for non-service connected conditions for Reserve members such as the applicant’s coronary heart disease; 5) Reserve members receive a FFDE instead of an MEB; 6) the applicant is not eligible for a trial of duty to determine fitness for duty until a FFDE is concluded; and, 7) a FFDE was not conducted due to the non-participation administrative action. The applicant provided a rebuttal, in effect, that: 1) the use of the term “temporary medical disqualification” implied the meaning in AR 135-91; 2) it was never conveyed to him nor did he understand that he was permitted to participate in Reserve training while temporarily medically disqualified; 3) he was entitled to an FFDE and trial of
duty but did not receive either; 4) he is physically fit for duty and should be so declared; 5) he should not have been subject to non-participation action; and,
6) he should be promoted to colonel.





CONCLUSIONS:

1. When the AR-PERSCOM Command Surgeon memorandum, dated
15 January 1999, informed the applicant that he was coded in the personnel database for temporary medical disqualification, instructed him to avoid severe levels of physical stress for at least six months, and that his condition would be evaluated at the end of six months, the Command Surgeon in effect and by definition placed the applicant in a temporary medical disqualification status with potential resolution between 6 months and 1 year as defined in regulation. According to AR 140-10, AR 135-91, and AR 40-501, the applicant should have been transferred to the Standby Reserve (active list), effective 15 January 1999. While in the Standby Reserve, he was not required to participate in Reserve training or activities and was therefore excused according to DoDD 1200.7 and AR 140-10, chapters 7 and 8. Transfer to the Standby Reserve and removal rule 8 (temporary medical disqualification) supercedes the 13 July 1999 notification of non-participation for the retirement year ending 9 April 1999, and nullifies transfer to the Retired Reserve under removal rule 2.1 for non-participation.

2. On 19 July 1999, the AR-PERSCOM Command Surgeon determined, based on a review of the applicant’s medical records, that he did not meet the fitness standards for retention due to cardiac problems according to AR 40-501, paragraph 3-21a, coronary heart disease. The Command Surgeon informed the applicant of his options for transfer to the Retired Reserve, discharge, or a FFDE. The applicant was no longer in a temporary medical disqualification status, but in a permanent medical disqualification status unless a FFDE later changed this status. On 20 August 1999, the applicant requested a FFDE, which should have been conducted. If found medically qualified and fit for duty, he should have been placed in the IRR for further assignment. If found unfit for duty, he should have been transferred to the Retired Reserve, as the applicant never requested discharge. The FFDE should still be conducted.

3. The applicant was eligible for promotion consideration when the 1999 Army Medical Department Colonel Promotion Selection Board convened on
1 June 1999. He was not selected by that board. There was an error in the record on educational qualifications which was corrected. He was reconsidered for promotion by a STAB that convened on 28 January 2000, and selected for promotion. The recommendations of the 1 June 1999 promotion selection board were confirmed by the Senate on 29 February 2000, which date is the promotion effective date and date of rank for officers selected for promotion to colonel by that board or a STAB under the criteria for the 1999 board. On that date, according to the record, the applicant was an IMA as he was not transferred to the Retired Reserve until 24 March 2000. However, on 19 July 1999, he had


been declared medically unfit for retention and was therefore in a non-promotable status on 29 February 2000. He remained in that non-promotable status until he was transferred to the Retired Reserve effective 24 March 2000. Members of the Retired Reserve are also in a non-promotable status. Therefore, because of his non-promotable status at any time after the promotion date of
29 February 2000, he cannot be promoted to colonel, unless he is subsequently found medically qualified and fit for retention by an FFDE and transferred to the IRR. If the latter becomes the case, he should be promoted to colonel the date that he is transferred to the IRR and regains promotable status.

4. From 15 January 1999, the date that the applicant was identified as temporarily medically disqualified, he was excused from Reserve training but not restricted from participating in Reserve training. His physical profile, likewise, did not restrict him from participating in Reserve training. The AR-PERSCOM Command Surgeon’s instruction to avoid severe levels of physical stress did not constitute instruction not to participate in all Reserve training, only the training that would present severe levels of physical stress. The only time that the applicant was effectively denied Reserve training opportunity and commensurate pay was between 17 December 1999 and 21 March 2000, when he was erroneously discharged. The applicant’s drill record as an IMA prior to his surgery does not demonstrate that he would have necessarily participated in Reserve training during this 3 month period. Therefore, there is no basis for awarding retirement points and commensurate pay in response to the applicant’s contention that he was denied such.

5. The applicant’s last OER in his record ended on 30 June 1998. During the next annual rating period, 1 July 1998 through 30 June 1999, he attended annual training from 2-14 August 1998, and should have received an annual OER. The record and the evaluation system show no OER for this period. At this late date, the period should be declared non-rated time due to no fault of the officer. From 1 July 1999 through the effective date of transfer to the Retired Reserve,
21 March 2000, the applicant performed no drill or annual training and so by regulation, no OER is required for this period nor is it necessary to place a statement in the record concerning this period.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.








RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected for the individual concerned by:

a. placing a statement in his record that the period 1 July 1998 through
30 June 1999 is a non-rated period due to no fault of the officer;

b. conducting a FFDE to determine his fitness for retention;

         c. if found medically qualified and fit for retention, transfer him to the IRR and promote him to colonel effective the date he is found fit; and

         d. if found medically unqualified and not fit for retention, retain him in the Retired Reserve with the assignment effective date of 24 March 2000.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__gp___ __dj___ __rb____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____George Paxson___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001056493
SUFFIX
RECON
DATE BOARDED	20020326
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT PART
REVIEW AUTHORITY
ISSUES 1.	106.001 - Restoration
2.
3.
4.
5.
6.