MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 01 MAY 2003
         DOCKET NUMBER: AR2002073924

         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:

Mr. Thomas B. Redfern III		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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, the applicant requests that his record be corrected to show that he was placed on the Reserve retired list in the grade of lieutenant colonel effective in January 2000.

APPLICANT STATES: That he applied for placement on the Reserve retired list in January 2000 and again in February 2002. He was medically separated from the Army due to a service-connected disability. He was processed through the physical disability system and has exhausted his appeals. Given his service, he should have been placed on the Reserve retired list in the highest grade he satisfactorily held, which was lieutenant colonel. He requested such placement three months prior to his medical separation. Army Regulation 140-10, paragraph 6.1 (3), (5), and/or (8) is very clear on this matter. The applicant's request includes a copy of a 10 April 2002 letter to the Secretary of the Army stating his concerns as indicated above. Also, a copy of a (an) -

Air Force order promoting him to lieutenant colonel as a Reserve of the Air Force effective 13 June 1991.

18 May 1992 letter informing him that he had been conditionally recommended for participation in the Army Health Professions Scholarship Program.

8 September 1992 oath of office showing that he had been appointed as a lieutenant colonel in the Army of the United States.

10 November 1992 order assigning him to the Army Reserve Control Group.

21 July 1993 order terminating his appointment as a Reserve of the Air Force because of his appointment in the Army Reserve on 8 September 1992.

1 April 1996 memorandum appointing him as a major in the Army Reserve as a Medical Corps officer. A 12 April 1996 order which ordered him to active duty as a major with a reporting date of 14 June 1996 to Walter Reed Army Medical Center.

31 May 1996 oath of office showing that he had been appointed as a major in the Army of the United States.

3 January 2000 letter to an official at the Army Reserve Personnel command in St. Louis, in which he thanked that official for information, and which he stated that he followed up his conversations with that official with two officers [at St. Louis?], who did not provide him the answers that he wanted to hear. He also stated that he wanted to confirm that he correctly understood that he could be placed on the Reserve retired list as a lieutenant colonel due to his long service, but not be eligible to receive retired pay at age 60. He asked how and when he could apply, stating that he was to be medically separated very soon.

20 April 2000 order reassigning him to a transition point for separation processing with a discharge date of 23 April 2000. That order shows that he was authorized disability severance pay in pay grade lieutenant colonel based on his years of service, and that his disability was rated as zero percent. That order also states that, "All Reserve of the Army and Army of the United States appointments are terminated."

         23 April 2000 DD Form 214 (Certificate of Release or Discharge from Active Duty) showing that he was discharged from the Army because of disability and that he received severance pay in the amount of $137,390.40. That form shows that he had over 11 years of active service and over 13 years of inactive service.

         6 February 2002 letter to the Army Reserve Personnel Command requesting that he be placed on the Reserve retired list in the grade of lieutenant colonel.

He also includes a copy of paragraphs 6.1 and 6.2 of Army Regulation 140-10. Paragraph 6.1 provides for assignment to the Retired Reserve and states that eligible soldiers must request transfer, and gives the conditions under which they can so request. Paragraph 6.2 pertains to orders and certificates of soldiers transferred to the Retired Reserve.

EVIDENCE OF RECORD: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's consideration of his case on 19 April 2000 in which the applicant requested medical disability retirement and separation as a lieutenant colonel (AR2000036186). In response to his 25 October 2000 request for reconsideration of the Board's decision, the applicant was informed on 17 April 2001 that there was no basis for resubmitting his request to the Board and his request was closed without any further action (AR2000048772).

The applicant was a Reserve Officer on extended active duty and who was also a two time nonselect for promotion to lieutenant colonel. On 14 July 1998 he was informed that, provided he consented, he would be selectively continued on active duty for a three year period unless sooner separated or retired under some other provision of law or regulation. On 14 September 1998 he agreed to the continuation on active duty.

On 6 January 2000 the applicant requested that The Adjutant General, the Commander of the Physical Disability Agency, and the Commander of the Total Army Personnel Command review the decisions made by the Physical Evaluation Board and the Physical Disability Agency concerning his disability rating.

On 14 January 2000 he requested that The Inspector General review those decisions.

A DA Form 7031-R (Officer Service Computation for Retirement [with the word "Retirement" lined out and the words, "Severance Pay" inserted]) shows that the applicant had over 25 years of total service for percentage purposes, but only 16 plus years for basic pay purposes. A listing of his retirement points shows that he had 13 qualifying years of service for retired pay at age 60 through his retirement year ending date of 26 February 1996. As indicated above, he entered on active duty on 14 June 1996 and was discharged on 23 April 2000, which would in effect give him 17 plus qualifying years of service for retired pay at age 60.

Title 10, United States Code, Section 1203 states in effect that the Secretary of the Army may separate a soldier who is unfit to perform the duties of his office, grade, rank, or rating because of physical disability, with severance pay if the soldier has less than 20 years of service and the disability is less than 30 percent.

Army Regulation 635-40 states in pertinent part that upon final decision of the Army Physical Disability Agency, PERSCOM (Total Army Personnel Command) will issue orders on a soldier separated for physical disability with severance pay.

Department of Defense Instructions Number 1332.38 states in pertinent part that Ready Reserve members who have completed at least 20 qualifying years of Reserve service and who would otherwise be qualified for retirement may forfeit disability severance pay and request transfer to an inactive status list for the purpose of receiving retired pay at age 60. When disability severance pay is accepted, the member forfeits all rights to received retired pay at age 60. Under 10 U.S.C. section 12731, Reserve component members with at least 15, and less than 20 years of qualifying service who would otherwise be qualified for retirement may waive disability disposition and request early qualification for retired pay until 1 October 1999 [since extended to 31 December 2001].

In 1993 the Army announced the Regular Army early retirement program. That program was established as a temporary management tool and was never intended to be an entitlement. It was offered only to Army members who met strict eligibility requirements. Those soldiers not medically cleared for separation by the early retirement date were ineligible to apply.

The Ready Reserve consists of soldiers assigned to troop program units and to Army Reserve Control Groups. There are four control groups, under the administrative jurisdiction of the Army Reserve Personnel Command, and consist of the Annual Training, the Reinforcement, the Officer Active Duty Obligor, and the Dual Component control groups.

Army Regulation 600-8-24 applies to all commissioned officers of the active Army and the Army Reserves when serving on active duty for a period of 30 or more consecutive days. It provides for nondisability retirement of active duty list (ADL) commissioned officers on active duty who have 20 years or more active federal service. That regulation also states that a commissioned officer must serve on active duty for 3 years in grade to retire in rank above major and below lieutenant general.

Army Regulation 140-10 states in pertinent part that the regulation applies to Army Reserve soldiers, and also to Army National Guard soldiers as specified in chapter 5. The regulation does not apply to the Active Army.

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. Notwithstanding the applicant's contentions, he did not apply for placement on the Retired list in January 2000. To the contrary, the evidence shows only that he queried an official in St. Louis about how and when he could apply. There is no evidence, nor has he submitted any, to show that he did apply.

2. Although the applicant was a Reserve officer on extended active duty, he apparently did have at least 15 years of qualifying service for retired pay at age 60; however, there is no evidence that he waived disability disposition in order to receive retired pay, nor has the applicant submitted any. The evidence, in fact, shows that he did not dispute the findings that he was physically unfit for retention, but disagreed only that his disability rating was too low, and that he should have been retired because of his physical disability. Nonetheless, he was not in the Army Reserve at the time of his discharge in April 2000, but was a Reserve officer on extended active duty, subject to the rules governing active duty officers. He was discharged because of his physical disability in his Reserve grade of major in accordance with applicable law and regulations. He received severance pay in excess of $130,000.00 . The applicant is not entitled to be placed in the Reserve retired list.

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

4. 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.

5. 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

__TBR __ __LDS __ __JTM __ DENY APPLICATION

                  Karl F. Schneider
                  Director, Army Review Boards Agency

---

INDEX

CASE ID	AR2002073924
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030501
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.	136.03
2.
3.
4.
5.
6.