MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 20 AUGUST 2002
         DOCKET NUMBER: AR2002068788

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Melinda M. Darby		Chairperson
Mr. Roger W. Able		Member
Mr. Curtis L. Greenway		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: Physical disability retirement with restoration of all rights, privileges, and property.

APPLICANT STATES: That she did not receive due process. The wrongful discharge was substantiated by the Inspector General; however, no equitable remedy was offered and no action taken by the Arizona Army National Guard despite the substantiated claim. She states that she was wrongfully discharged in 1996 in retribution for a gender discrimination case filed in 1994 that resulted in findings that were substantiated. She states that after release from active duty in 1990 she enlisted in the Arizona Army National Guard. In 1994 she filed an Inspector General complaint because of gender discrimination. The complaint was substantiated. She was reassigned to a different unit and retrained, and boarded and promoted to pay grade E-5. The commanding officer and first sergeant were reassigned and equal opportunity training initiated for the unit. At least one soldier was reduced and reassigned. She believes that when she underwent a retention physical examination in May 1996 [which resulted in her discharge], that the discharge was in retribution for the actions that she had taken. Subsequent to her discharge, she applied to the VA for medical benefits because of Gulf War syndrome; however, that agency considered the fact of her discharge as not being credible evidence to support her claim. In June 2001 she requested assistance from the Inspector General [Arizona National Guard] who substantiated her allegation that she was wrongfully discharged. Her discharge caused her a loss of ten years of military service with the attendant loss in pay, promotion, and retirement points. She requests a physical disability retirement, and states that not being permitted to continue her service until the expiration of her term of service (ETS) date prevented her from having the necessary tenure for a medical retirement. She requests financial compensation for lost wages and promotion during the period that would have allowed due process, and retirement points for that period.

COUNSEL CONTENDS: Counsel supports the applicant’s request.

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

The applicant’s military records show that she served on active duty from 31 July 1987 to 14 February 1990 in MOS (military occupational specialty) 95B10 (Military Police). She was released from active duty because of pregnancy and transferred to the Army Reserve Control Group (Annual Training). On 10 May 1990 she enlisted in the Arizona Army National Guard for five years and was assigned to the 855^th Military Police Company in Phoenix. Subsequent to that date, she extended her enlistment which resulted in a new ETS date of 9 November 1996. She served on active duty in support of Operation Desert Shield/Desert Storm from 6 December 1990 to 27 June 1991.

A computer printout shows that she received a physical examination on 1 May 1991 and that her physical profile serial was 1 1 1 1 1 1.

On 4 April 1994 the applicant was transferred to the 996^th Medical Company in Glendale with duty as an ambulance driver. She was transferred to the 98^th Troop Command in Phoenix on 12 January 1995. She was promoted to Sergeant, pay grade E-5 on 13 January 1995. She was transferred back to the 996^th on 1 February 1995. On 1 September 1995 she was transferred to Company C of the 111^th Medical Battalion in Glendale.

With her request, the applicant provides a 6 October 1994 memorandum for the Arizona Army National Guard in which she indicated specific incidents of gender bias in the 855^th Military Police Company. She also provides a copy of a 17 February 1994 interview with an officer appointed to investigate reports that an NCO had engaged in conduct which could affect his promotion. That interview also indicated complaints of sexual discrimination.

On 16 December 1994 the commanding officer of the 98^th Troop Command (Support Brigade) provided her a written response of the actions taken in response to her complaint. He stated that he admonished the commanding officer of the 855^th to stop any disparaging remarks made about her by soldiers of the 855^th, informed her of the dates of scheduled promotion boards and options available to her in order to appear before a board, stated that no members of the 855^th would sit as members of the promotion board, and indicated that he had discussed the possibility of her training for a MOS within the medical company.
He informed her that he had issued a letter of reprimand to an NCO, resulting in his not being promoted, stated that the investigation of the 855^th was continuing, and stated that he had directed the commanding officer of that unit to conduct equal opportunity training.

On 23 March 1995 the commanding officer of the 98^th Troop Command notified her of actions accomplished since his 16 December 1994 memorandum to her, to include her promotion and enrollment in training to become qualified as a medical specialist, reassignment of the 855^th commander, and transfer of the first sergeant. He stated that he believed that those actions resolved her complaints.

On 23 June 1995 she completed Phase II of the Medical Specialist Course (nonresident). On 10 December 1995 she completed the annual medical certificate certification.

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Page 2 of an undated report of medical examination indicates that the applicant needed a board evaluation for retention. That page indicates that she had “reactive airways.” In a 27 April 1996 report of medical history the applicant stated that her health was good. She did state that she was allergic to Keflex, dust and pollen, that she previously had various ailments, to include hay fever and asthma.

In a 6 June 1996 memorandum, the Deputy Military Personnel Officer of the Arizona Army National Guard informed the applicant’s commanding officer that a profile board determined her medical problem to be incompatible with military service and that she was non-retainable for medical reasons per Army Regulation 40-501, paragraph 3-27a(1)(b). He stated that the applicant had less than 15 years of service and would therefore be immediately separated. The report of the board is not available. A statement of her retirement points shows that she had 7 years, 6 months, and 14 days of qualifying service for retired pay at age 60 as of 6 June 1996.

On 21 June 1996 the Arizona Army National Guard published an order discharging the applicant from the Arizona Army National Guard and as a Reserve of the Army on 6 June 1996 because she was medically unfit for retention. The applicant’s NGB Form 22 (Report of Separation and Record of Service) shows that she had 8 years, 10 months, and 6 days of total service for pay.

On 24 July 2001 the Inspector General of the Arizona Army National Guard informed the applicant that her allegation that she was improperly medically discharged on 6 June 1996 in violation of National Guard Regulation 40-501 was substantiated. He stated that she was not provided due process based on the timeline between the Medical Duty Review Board (MDRB) and her discharge, which was only fifteen days apart [The date of the MDRB would have been 21 May 1996]. He stated that the regulation allowed her a 60-day rebuttal period to produce any medical documentation pertinent to her case, and obviously that did not happen. He stated that he recommended to The Adjutant General that she be allowed to be re-accessed into the Arizona Army National Guard, if qualified, and a proper MDRB be conducted to allow her to produce any medical information pertinent to her case. He also recommended that a request to this Board be submitted.

National Guard Regulation 40-501 states in pertinent part that each officer, warrant officer, and enlisted soldier is required to undergo a complete physical examination at least once every five years.

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That regulation also establishes a process for evaluation of soldiers who may become unfit to maintain membership in the Army National Guard and provides for a state Medical Duty Review Board (MDRB) process, a three step process – an initial medical evaluation, a state MDRB, and appeal mechanisms. If the state MDRB recommends that a soldier be separated from the Army National Guard
as medically unfit for retention, the soldier will be allowed 60 days to submit additional information which he or she may feel would be in the soldier’s interest.

The additional information will be reviewed by the MILPO and the State Surgeon for final recommendation. On request of the soldier, the records may be submitted for an advisory opinion or waiver determination prior to final determination by the MILPO/State Surgeon. The State Adjutant General will make the final decision. The State Adjutant General may also request a review of the medical information for an advisory opinion and may request a waiver for retention in meritorious cases.

Army Regulation 40-501 gives the various medical conditions and physical defects which may render a soldier unfit for further military service. Paragraph 3-27a states that asthma is a cause for referral to a Medical Evaluation Board (MEB). Asthma includes reactive airway disease, exercise-induced bronchospasm, or asthmatic bronchitis. Definitions/diagnostic criteria are as follows (paragraph 3-27a(1)(b)) – Reversible airflow obstruction which is defined as more than a 15 percent increase in FEV1 (forced expiratory volume in one second) following the administration of an inhaled bronchodilator.
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 23 October 1994 and 31 December 2001 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 applicant apparently did not have a 60 day period in order to respond to the recommendation of the MDRB, as substantiated by the State Inspector General. She did not have the due process afforded by the regulation.

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2. The results of the state MDRB, her medical records, and the documents leading up to her discharge are not available. She did have asthma and was allergic to certain matters as she stated in her 27 April 1996 report of medical history. The second page of a report of medical examination indicates that she had “reactive airways.” The Arizona Army National Guard memorandum of 6 June 1996 indicates that she was medically unfit because of her asthma.

3. Notwithstanding her statements, there is no evidence nor has the applicant submitted any, to show that she was wrongfully discharged in retribution for a gender discrimination case that she filed in 1994. To the contrary, her complaint was adequately resolved. In resolving her complaint it appears that she was transferred from one unit to another in order to be promoted, and transferred back to her former unit after she was promoted. Her command did all that they could to settle her case. The Board notes that she was informed that her case was resolved in March 1995, and it was over a year later that she was determined to be unfit for retention, after she had undergone a periodic medical examination mandated by National Guard Regulation 40-501.

4. The applicant was not afforded the due process provided for in the National Guard regulation, that is, she was not allowed the 60 day rebuttal period to respond to the decision made by the MDRB. However, there is no correlation between the due process and physical disability retirement. The Board acknowledges the lack of due process, but also concludes that it would not have allowed the applicant to obtain the outcome she now seeks, a medical retirement. The strict legal remedy for the due process violation substantiated by the IG would be to void the applicant’s medical discharge, substituting a discharge for the expiration of her term of service a few weeks later. Because the applicant asserts that she was and is unfit, and because the substitution of a non-medical discharge would be inconsistent with the applicant’s request, this remedy should not be applied. If the applicant had been accorded the appropriate rebuttal opportunity, she would have been able to present one of two mutually exclusive arguments: she might have asserted either that she was fit for duty, an argument inconsistent with the position she now asserts, or she might have asserted that she was more severely impacted by her asthma than the Army recognized. Even if accepted by the appropriate authorities, neither position would have led to her medical retirement from the National Guard because she had not completed the requisite years of service. The applicant did not have 15 years qualifying service for retired pay at age 60 at the time of her discharge, nor would she have attained 15 years of qualifying service had she continued her service until her ETS date of 9 November 1996, as she alleges. Consequently, there is no reason to correct her record to show physical disability retirement.

5. In spite of the lack of due process, the applicant’s discharge because of her medical unfitness on 6 June 1996 harmed her not. She was not eligible for physical disability retirement.

6. The applicant has submitted neither probative evidence nor a convincing argument in support of her request.

7. 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.

8. 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

___MMD_ __RWA__ __CLG__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068788
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020820
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.