PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 22 October 2002
         DOCKET NUMBER: AR2002077702


         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
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Shirley L. Powell		Member
Mr. Elzey J. Arledge, Jr.		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 that the records of her deceased spouse, a former service member (FSM), be corrected to show he was medically retired.

3. The applicant states that the FSM had a stroke while he was still on active duty.

4. The FSM’s military records show that he was born on 21 December 1950. After having had prior active duty, he enlisted in the Army National Guard on 20 August 1975 as an 11B (Infantryman). He married the applicant on 18 February 1977. He was promoted to Sergeant, E-5 on 4 May 1979. He was awarded military occupational specialty 12B (Combat Engineer) on 23 October 1980.

5. On 3 May 1993, apparently while on annual training, the FSM was hospitalized for an acute cerebrovascular accident (CVA) (i.e., a stroke). On admission he could not move his left side. He was discharged on 7 May 1993 after good response to physical therapy and with much improvement in his left-sided weakness. He was readmitted on 17 May 1993. His neurologic status had improved, his strength on his left side was very good but his left handgrip was slightly worse than his right and he had some tingling in the tips of his fingers on the left. He was admitted due to having a right-sided headache. There was some concern there may be a small parenchymal (brain) hemorrhage on the right that was different from his previous CVA. There is no further medical evidence.

6. On 19 August 1993, the FSM was discharged from the Army National Guard upon the expiration of his term of service (ETS) after completing almost 19 years and 6 months of qualifying service for retirement. He was flagged at the time of his discharge due to Army Physical Fitness Test (APFT) failure.

7. The FSM died on 11 March 2000 as a result of a single car accident.

8. Title 10. U.S. Code, section 12731a was the temporary special retirement qualification authority. A revision dated 5 October 1994 provided that, during the period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who completed at least 15, and less than 20, years of qualifying service and who no longer met the qualifications for membership in the Selected Reserve solely because the member was unfit because of physical disability, and upon the request of the member, could be transferred to the Retired Reserve and treated as having met the service requirements and be provided with the notification required if he had completed at least 15 and less than 20 years of service and was otherwise qualified.

9. Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation. Paragraph 3-30 states that a stroke, when residuals affect performance of duty, is a cause for referral to a medical evaluation board.
10. Title 10, U. S. Code, section 1176(b)(2) states that, if on the date prescribed for the involuntary separation (other than for physical disability or for cause) or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause) from an active status of a reserve enlisted member or officer he is entitled to be credited with at least 19, but less than 20, years of service, he may not be discharged, denied reenlistment, or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

11. Public Law 95-397, the Reserve Component Survivor Benefit Plan (RCSBP), enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60^th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60. If death does occur before age 60, the costs for options B and C are deducted from the annuity.

CONCLUSIONS:

1. The Board concludes that an injustice occurred in this case.

2. The FSM had a mild stroke on 3 May 1993. While there was much improvement, he still had some weakness in his left hand. In addition, it appears he may have had a subsequent stroke later that month. The FSM was a combat engineer. It appears likely that these strokes would have hindered the performance of his duties.

3. Moreover, the FSM had over 19 years of qualifying service for a non-Regular retirement. Even though he was flagged for APFT failure, he should have been offered the opportunity to remain in an active status until he completed 20 years of qualifying service. There is no evidence to show the FSM was counseled concerning this right.

4. The FSM was discharged from the Army National Guard on 19 August 1993, shortly after his hospitalizations for strokes, upon the completion of his ETS. At that time he had completed 19 qualifying years for a reserve retirement, the last 17 of those years in a Reserve Component. It appears, however, that he should have been medically evaluated. Considering his military duties, it appears likely that he would have been found to be medically unfit for retention.
5. In August 1993, there was no provision for an early reserve retirement due to medical disability. However, the law was changed on 4 October 1994 and was made retroactive to 1 October 1991. It would be equitable to show that the FSM was transferred to the Retired Reserve in accordance with the Temporary Special Retirement Qualification Authority with a 15-year letter and, considering his health, that he elected to participate in the RCSBP.

6. In view of the foregoing, the FSM’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 by:

a. showing that the FSM was determined to be medically unfit for retention;

b. showing that the FSM was transferred to the Retired Reserve on 19 August 1993 in accordance with the Temporary Special Retirement Qualification Authority and issued a 15-year letter entitling him to retired pay at age 60; and

c. showing that the FSM enrolled in the RCSBP effective 19 August 1993 for spouse coverage, full base amount, option C.

2. That the applicant be paid the RCSBP annuity based upon the FSM’s election to participate in the RCSBP retroactive to 11 March 2000, the date of his death.

BOARD VOTE:

_ _FNE _ __SLP__ ___EJA__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION





                  ___Fred N. Eichorn _
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077702
SUFFIX
RECON
DATE BOARDED	2002/10/22
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	FULL RELIEF
REVIEW AUTHORITY
ISSUES 1.	136.06
2.	108.00
3.	137.01
4.
5.
6.