MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 30 OCTOBER 2001
         DOCKET NUMBER: AR2001059826

         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:

Ms. Celia L. Adolphi		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Harry B. Oberg		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)

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APPLICANT REQUESTS: In effect, that his records be corrected to show that he was medically retired.

APPLICANT STATES: In October 1992 he failed an annual physical fitness test because of chronic back and leg pain. He states he obtained a statement from his private physician recommending that he not participate in the Army’s fitness program. He notes that a National Guard medical team “decided [he] should be transferred to the ING [Inactive National Guard] for a period of 1 year and then given another physical and evaluation to determine if [he] should continue on active duty with the NYARNG [New York Army National Guard]….”

He states that the reason he was “agreeable to a one year ING status” was because he had just “started RN Nursing school…and the one year in the ING would give [him] time to complete [his] studies after which [he] had intended to apply” for a USAR (U.S. Army Reserve) commission as a nurse. However, he states, that instead of receiving a new physical examination he was merely discharged from the National Guard and transferred to the IRR (Individual Ready Reserve).

In a separate letter to his congressional representative, the applicant maintained that when he was transferred to the ING he was told that he would be “given a follow-up physical to determine whether or not [he] should be allowed to continue on active duty with the guard. If they found that [he] was fit [he] would just have continued with [his] service to the end of [his] twenty years, if [he] had failed the physical they would have had to give [him] a medical disabilities discharge and [he] would have received a monthly benefit.”

The applicant also alludes to the fact that he had 15 years, 2 months and 28 days of creditable service, not 14 years, 2 months and 28 days and that he is entitled to a “15 year medical retirement.”

In support of his request he submits a copy of his summary of points earned towards retirement and copies of orders from his service record associated with his transfer to the ING and IRR. On the points summary sheet he has annotated one year of service for each retirement year in which he earned 50 or more points. He submits no medical evidence in support of his request.

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

Commencing in 1954, the applicant served in a variety of military service components, including the Active Army, Air Force, Army and Air Force Reserve, and the Army National Guard. Between 1954 and 1987, in addition to his military



service, he had several periods where he had no association with the military. Those periods are listed as “non-military, civilian break” on his statement of service document submitted in support of his request.

On 14 May 1987 the applicant enlisted in the New York Army National Guard for a period of 6 years. His ETS date was established as 13 May 1993.

The applicant’s performance evaluation report for the period April 1992 through October 1992 indicates that he failed the June 1992 physical fitness test and exceeded the Army’s established weight standards.

A 25 September 1992 letter from the applicant’s civilian physician noted that the applicant had chronic low back pain and had been on “Social Security Disability since 1984.” The physician indicated that the applicant’s low back and leg pain had become worse and he believed “it would be impossible from a medical stand point for [the applicant] to fulfill his obligations in the National Guard.”

The applicant was removed from the unit’s weight control program on 17 October 1992 after meeting Army standards.

On 18 October 1992 the applicant’s unit commander asked that the applicant’s medical statement be evaluated to determine if the applicant should be issued a physical profile. On 20 October a physician indicated on a record of medical care form that the applicant “needs ING for year and then re-evaluate” and that he (the physician) supported that his (the applicant’s) “condition is progressive.” The Patient Administrator, for the NYARNG, prepared a memorandum indicating that the applicant, and several other members of the National Guard, had “medical conditions that prohibit them from active participation in National Guard activities” and requested that those individuals be transferred to the ING effective 1 November 1992.

Orders issued on 4 November 1992 transferred the applicant to the ING. Those orders noted that “commanders are directed to advise the soldier that failure to return to an active status prior to expiration of the ING status, will result in separation of the soldier, effective on the date of expiration of the ING status.” The orders indicated the applicant’s ING status would expire on 31 October 1993. The applicant provided a copy of the orders, which transferred him to the ING, as part of his application to this Board.

On 11 May 1993, two days before his 13 May 1993 ETS date, the applicant extended his 1987 National Guard enlistment by an additional 6 years, thereby establishing his new ETS date as 13 May 1999.

On 22 March 1994 orders were issued by the Office of the Adjutant General, State of New York, discharging the applicant from the Army National Guard and assigning him to the U.S. Army Control Group (Annual Training) effective
31 October 1993, the date his ING status expired. The applicant also provided copies of the March 1994 order as part of his application to the Board.

The retirement points statement, submitted by the applicant in support of his contention that he has 15 years, 2 months and 28 days of qualifying service for retirement purposes, is dated 23 December 1993. That statement notes the applicant accumulated 2183 points for retired pay and has 14 years, 2 months and 28 days of creditable service for retired pay. Because the applicant had several breaks in his military service, several periods, during which the applicant accumulated 50 or more points, were not complete years. Three of the years which he claims as proof of creditable service because he accumulated more than 50 points were in fact only a total of 1 year, 5 months and 8 days of total creditable service, not three complete years. As an example, the applicant had no military affiliation between 16 September 1969 and 20 August 1973. On
21 August 1973 the applicant enlisted in the U.S. Army Reserve. After accumulating more than 200 points (partly because of an active duty period), the applicant was discharged effective 2 April 1974. On 2 April 1974 he had no military status according to his retirement points statement. Although the applicant cited his more than 200 points as evidence of his “7^th” year of creditable service, the reality was that he was only credited with 7 months and 12 days of creditable service (between 21 August 1973 and 2 April 1974) during that period.

Army Regulation 635-40 states, in effect, that Reserve Component soldiers will be separated from the Reserve when they no longer meet medical retention standards. Such separation will be without benefits if the unfitting condition 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.

The National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a (now codified under section 12731a). The modification allows Reserve component soldiers who are involuntarily separated between 5 October 1994 and 30 September 1999 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve component retirement.







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. The Board notes that the applicant’s transfer order to the ING, which he provided with his application, clearly indicates that if the soldier failed “to return to an active status prior to expiration of ING status” he would be separated upon expiration of the ING status. There is no evidence, nor has the applicant provided any, that he took any action to return to an active status.

2. The applicant admits that he accepted the transfer to the ING so he could pursue his civilian education with the intention of applying for a USAR commission. He provides no evidence that he attempted to pursue that avenue and his October 1993 discharge from the ING and transfer to the Control Group would not have impacted on his ability to apply for such a commission if he were otherwise eligible.

3. Notwithstanding the above conclusion the Board notes that the applicant essentially contends that he is eligible for a “15 year medical retirement.” He bases his contention on the fact that he believes he had 15 years of qualifying service and was medically disqualified from continuing his military service.

4. The evidence, however, does not indicate that the applicant’s medical condition, which resulted in his November 1992 transfer to the ING, was service connected. As such, even if it were ultimately determined that the condition disqualified him from continued service it would not have resulted in a disability retirement or separation with entitlement to any disability compensation. Only medical conditions, which were incurred, or aggravated by military service, qualify an individual for immediate disability compensation.

5. Additionally, the applicant did not have 15 years of qualifying service at the time he was discharged from the ING and transferred to the U.S. Army Reserve Control Group (Annual Training). As such, even if it would have been determined, upon re-evaluation, that he was not medically qualified for continued service in October 1993, he would not have qualified for retirement pay at age 60 under the National Defense Authorization Act for Fiscal Year 1995. The act required involuntary transfer on or after 5 October 1994 and 15 years of creditable service. The applicant did not meet either requirement.

6. 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.


7. 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

__CLA __ __AAO _ __HBO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059826
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011030
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.	108.00
2.
3.
4.
5.
6.