RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 30 MARCH 2004
         DOCKET NUMBER: AR2003091500


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Allen L. Raub		Member
Mr. Larry C. Bergquist		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).

---

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant's request is that as indicated in the memorandum submitted by his counsel, indicated below. He made no statement, but deferred to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1. In effect, counsel requests that the applicant's records be corrected to show 20 years of qualifying service for retired pay at age 60 effective on 18 June 2002, with all due pay and allowances; or, in the alternative, physical disability retirement, or early retirement under the provisions of U.S.C. 10, Section 12731a (temporary special retirement qualification authority), whichever is most advantageous to the applicant.

2. Counsel states that the applicant's service credit should be recomputed to include credit in an active status of 9 years, 3 months, and 8 days, as reflected in his appointment documents and as confirmed by his procurement officer, and that the applicant be retired with an excess of 20 qualifying years of service on 18 June 2002. He states that the applicant should be restored to active duty to determine his eligibility for medical retirement as a result of his coronary disease. He states that the applicant was eligible for early retirement at the time of his coronary medical procedure.

•         The applicant enlisted in the Army in 1954, serving until December of 1961. He subsequently was awarded a degree in dental medicine on 1 June 1965. The applicant was commissioned in the Army, with the express understanding that he would be given total entry grade credit for 9 years, 3 months, and 8 days that he had previously served, and that the entry grade credit would count for retirement purposes.

•         The applicant had two right and one left hip replacement procedures between 1970 and 1998. Each procedure was conducted at a civilian hospital.

•         In 1996 while on active duty at Fort Gordon, Georgia, the applicant suffered chest pains, underwent a coronary angiography, and was diagnosed with coronary artery disease. The referring military physician opined that he was non-deployable, recommended that he be given a permanent profile, and stated that his case would be best managed with coronary bypass surgery. The applicant was serving on active duty; however, his command did not refer him to a physical evaluation board (PEB).

•         On 4 June 2002 the applicant underwent a physical evaluation for continued service. The 77th Regional Support Command surgeon determined that because of his bilateral hip replacements and degenerative joint disease in his right knee he was medically disqualified for continued service. Because his conditions were neither incurred nor aggravated while he was in a duty status, his case was not compensable under the military disability system. The findings were forwarded to the applicant's command.

•         On 14 June 2002 the applicant acknowledged that he was medically unfit and elected to be reassigned to the Retired Reserves since he had at least 15 but less than 20 qualifying years for retired pay purposes.

•         On 24 June 2002 the PEB at Walter Reed opined that if the applicant exercised his right to demand referral to a PEB, in order to convince the PEB that he could continue to satisfactorily perform his duties, the PEB would find him unfit for duty. The PEB opined that the applicant might be eligible for retired pay under the provisions of 10 U.S.C., Section 12731b.

•         On 28 June 2002 the applicant was transferred to the Retired Reserve.

•         Prior to the applicant's retirement, the Army Reserve Personnel Command (ARPERSCOM) was aware of, and sympathetic to, the above-mentioned issues. E-mail inquiries were initiated relative to the applicant's concerns. In those e-mails the applicant's command was criticized for its inaction in not retiring him with pay under the provisions of 10 U.S.C., Section 12731a, or timely referring him to a PEB. The last substantive e-mail from the Office of The Judge Advocate General (OTJAG) shows that because the authority of 10 U.S.C., Section 12731a had expired, the applicant could not be retired under that statute; however, the Army Board for Corrections of Military Records (ABCMR) could do so.

•         Counsel points out information from five Board cases that he states are comparable to the applicant's case.

•         Counsel states that if the recruiter's assurances concerning his entry grade credit, and the documents showing that credit are accurate, then the applicant should have had well in excess of the 20 years' service needed for retirement. He was promised that credit for retirement purposes, and had he known otherwise he might have not made the same commitment to accept a commission. Equity compels that the applicant be awarded credit in an active status that the documents confirm.

•         Nonetheless, if that claim for relief is not granted, then the Board should consider the applicant's medical events that occurred in 1996. The medical documentation is clear. The applicant suffered from obstructive artery disease, underwent a left heart catheterization and a left and right coronary angiography. He should have been referred to a PEB in 1997, and has not met the medical fitness standards since at least 1997, well in excess of five years before he was actually transferred to the Retired Reserve in June 2002. 10 U.S.C., Section 12731a, in effect at the time of the applicant's coronary bypass, authorized special retirement with at least 15 years of service; however, the authority for that section expired on 31 December 2001. The applicant's command took no action subsequent to his medical problems of 1996 because of the expiration of the relevant statute in effect at that time; consequently, the applicant is now being penalized. Both the Army Reserve Personnel Command and the Office of The Judge Advocate General recognize it. Equity requires that the applicant be entitled to early retirement under the provisions of the statute in effect at the time. The command should have referred him to a PEB or given him the option of early retirement.

3. Counsel provides the evidence as indicated herein.

CONSIDERATION OF EVIDENCE:

1. The applicant served on active duty as an enlisted Soldier from 19 January 1954 to 16 January 1957, the date that he was honorably separated from the Army. He served on active duty as a Dental Corps officer from 2 July 1965 until his release from active duty in the rank of captain on 1 July 1967, the expiration date of his active duty commitment. His DD Form 214 (Report of Transfer or Discharge) shows that he was transferred to the Army Reserve Control Group (Reinforcement) at St. Louis. On 9 October 1967 he was discharged from the Army Reserve. The order effecting that discharge shows that he resigned his commission.

2. On 18 July 1983, prior to his appointment as a commissioned officer, a DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers) was completed, showing that the applicant received 7 years of constructive service credit (4 years because of his dental degree and 3 years credit because of his professional experience). He also received 2 years, 3 months, and 8 days credit for his prior active commissioned service as a dental officer, for a total of 9 years, 3 months, and 8 days of entry grade credit.

3. On 25 July 1983 a program manager at The Surgeon General's office recommended that the applicant be appointed in the Dental Corps in the grade of captain, with credit in an active status (not to be considered for purpose of computing base pay) of 9 years, 3 months, and 8 days.

4. On 15 August 1983 the applicant was appointed as a Dental Corps captain in the Army Reserve. The appointment letter shows that he was credited, as of the date that he would complete his oath of office, with 9 years, 3 months, and 8 days of service in an active status. That letter indicated that the service was not valid for pay entry basic date and was not the result of prior military service. The applicant completed the oath of office on 21 September 1983. Concurrent with his appointment, he was assigned to the 1204th Dental Service Detachment, a Reserve unit in Bronx, New York.

5. On 13 May 1985 the applicant was reassigned from the 1204th to the Army Reserve Control Group (Reinforcement) based upon his voluntary request. On 18 April 1989 the applicant was assigned to a unit of the 96th Army Reserve Command at Fort Douglas, Utah. Other than his orders transferring him to the Retired Reserve in 2002, assignment orders thereafter are unavailable to the Board; however, his officer evaluation report for the period beginning on 12 June 1989, shows that he was assigned to the 320th Evacuation Hospital in New Windsor, New York.

6. The applicant was promoted to major on 12 June 1988 and to lieutenant colonel on 11 June 1995.

7. A 31 July 1995 memorandum shows that, in response to the request submitted in behalf of the applicant for retention beyond his mandatory removal date, he was approved for retention in an active status until 31 June 1999.

8. On 24 December 1996 the applicant underwent a left heart catheterization, left and right coronary angiography, at the Dwight D. Eisenhower Army Medical Center at Fort Gordon, Georgia.

9. In a 23 January 1997 cardiology evaluation report, the chief of the cardiovascular services at the medical center at Fort Gordon stated that at the time of his surgery, it was his impression that the applicant would be best managed with single vessel coronary artery bypass surgery. He stated that the applicant was discharged from the hospital with the intention of originally having him come back for coronary artery bypass grafting. He stated that the applicant went back to New York and obtained a second opinion. In addition, he was placed on convalescent leave ending on 24 January 1997. That doctor continued by saying that the applicant at the present time (23 January 1997) was not a deployable asset, and that the applicant was deciding on whether or not to undergo coronary artery bypass surgery. He stated that the applicant would be given a permanent profile to refrain from strenuous physical activity, and although not a deployable asset, he could still remain on active duty since his symptoms had been reasonably well controlled on medicines, and he did not appear otherwise to be limited in terms of his activity tolerance.

10. On 16 June 1999 the Army Reserve Personnel Command notified the 77th Regional Support Command that the applicant's request for retention beyond his mandatory removal date had been approved, until age 67, 30 June 2002.

11. On 25 July 2001 the applicant was promoted to colonel.

12. On 29 January 2002 the Army Review Boards Agency at St. Louis informed the applicant that his 16 January 1957 DD Form 214 had been corrected by this Board to show that he completed an additional 2 days of active service. He was provided a copy of his chronological statement of retirement points showing that as of his retirement year ending date of 20 September 2001, he had 17 years of qualifying service for retired pay at age 60. That statement also shows that, except for 15 membership points, he earned no retirement points from the date of his appointment on 21 September 1983 through his retirement year ending date of 20 September 1989 (except for 3 inactive duty points earned in his retirement year ending on that date). Documents that the applicant submitted with his application to this Board that resulted in the above correction show his Pay Entry Basic Date (PEBD) as 4 January 1954.

13. On 7 June 2002 the Chief of Patient Administration of the Army Medical Department Activity at West Point notified the applicant's Reserve command that medical evaluation findings indicated that the applicant did not meet the medical standards for retention because of "prosthetic replacement of major joints if there is resultant loss of function or pain that precludes satisfactory performance of duty." That notification indicated that it could not be determined at that time if the applicant met the retention standards for coronary bypass surgery – the applicant would require a 120-day trial period as well as further testing. It indicated that bilateral hip replacement and right knee DJD (degenerative joint disease) were conditions that were not incurred while entitled to pay; however, if the applicant felt that his condition was aggravated while entitled to pay, his unit had to initiate and complete a formal line of duty determination. That notification went on to say that the fact that the applicant had a medical condition that fell below the medical retention standards did not mean that he was unfit to perform his duties. On 5 June 2002 the applicant was issued a permanent physical profile serial of 1 3 3 1 1 1 because of his bilateral hip replacements and right knee DJD.

14. On 12 June 2002 the 77th Regional Support Command Surgeon notified the applicant that he was medically unfit for retention in the Army Reserve. He informed the applicant that he had various options – to request reassignment to the Retired Reserve, to request reassignment to the Retired Reserve with early qualification for retired pay provided he had at least 15 but less than 20 qualifying years of service for retired pay, to request an honorable discharge, or to request a review of his non-duty related medical disqualification by a PEB. He was requested to respond indicating his option within 30 days.

15. In his 14 June 2002 response, the applicant indicated that he requested reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60. He indicated that he had at least 15 but less than 20 qualifying years of service for retired purposes. He also stated that he understood that he could request a formal PEB if a review by an informal PEB further determined that he was disqualified.

16. On 17 June 2002 the applicant was assigned to the Retired Reserve because of his medical disqualification for retention.

17. In response to a request from the 77th Regional Support Command, on 24 June 2002, the PEB at Walter Reed noted that because the applicant's condition was neither incurred nor aggravated while in a duty status his condition was deemed to be a non-duty related condition, and that such conditions were not compensable under the military disability system, and that there was no requirement that his case be referred to a PEB. It noted that a Soldier who was medically disqualified due to a non-duty related condition is referred to a PEB only when the Soldier believes that he could continue to satisfactorily perform his military duties in spite of his condition, and demands referral to a PEB. The PEB at Walter Reed noted that because a Soldier falls below the medical retention standards does not automatically mean that he is unfit to perform his duties; however, Soldiers with bilateral hip replacements were determined to be unfit by the PEB, and that if the applicant had exercised his right to demand referral to a PEB in order to convince the PEB that he could continue to perform satisfactorily, the PEB would find him unfit for duty. The Washington, D.C. PEB indicated that 10 U.S.C., Section 12731b provides that Soldiers with non-duty related medically disqualifying conditions who had at least 15 but less than 20 qualifying years for Reserve retirement could request reassignment to the Retired Reserve with early qualification for Reserve Retired pay at age 60. It stated that there was no requirement that those cases be referred to a PEB for a fitness determination before action was taken on the request for early qualification or transfer to the Retired Reserve.

18. In a 5 May 2003 affidavit the applicant stated that prior to accepting his commission as a captain in 1983 he was assured by his procurement officer that he had accrued in excess of 9 years in an active status and that service was credited for retirement computation at the appropriate time. He referred to the 25 July 1983 document [previously mentioned] crediting him with service in an active status of 9 years, 3 months, and 8 days. He stated that after his retirement he was informed that he had only accrued 18 years, 2 months, and 12 days credit for retirement purposes, and that much of the 9 plus years that he had previously served in an active status did not qualify for retirement purposes. He stated that because of the representation of his recruiter and the language of the relevant documents it would appear that the 9 plus years did count. He went on to comment on his coronary artery disease, stating that although he was not deemed to be deployable, without referral to a PEB, he continued in an active status. He stated that he did retire in June 2002 of his own volition. He requested that the Board favorably consider his case and award a proper computation of active duty years for retirement purposes.

19. The applicant's officer evaluation reports for the period shown reveal:

•         22 February 1994 – 21 February 1995, while assigned as a dental officer with the 300th Medical Detachment, 77th Army Reserve Command. His rater indicated that he had a profile, but it did not affect his performance. He was enrolled in the Command and General Staff College, Phase 1. He attended all drills scheduled during the rating period.

•         22 February 1996 – 21 February 1997, while assigned as a dental officer with the 4217th Army Hospital, 77th Regional Support Command. That report shows that he was deployed from 5 November 1996 to 21 February 1997. His rater stated that the applicant was a credit to his profession, and that despite having a profile, he maintained the appropriate level of physical fitness and was able to perform assigned duties. His profile did not hinder job performance.

•         22 February 1998 – 21 February 1999, while assigned with the 300th Medical Company. His rater stated that he maintained the appropriate level of physical fitness and was able to perform all assigned tasks, and indicated that he passed the Army physical fitness test (APFT). His rater stated that he was a credit to his profession and deserved to be promoted to colonel.

•         22 February 1999 – 30 November 1999, while assigned with the 300th. His rater, the same rater indicated immediately above, made the same identical remarks concerning the applicant's physical fitness and his abilities.

•         1 December 2000 – 30 November 2001, while assigned as an oral surgeon with the 348th General Hospital. His rater indicated that the applicant maintained the appropriate level of physical fitness and military bearing and that he passed the APFT.

20. E-mail correspondence, provided by the applicant's counsel, between the Army G-1, the Army Reserve Personnel Command (ARPERSCOM), and the Office of The Judge Advocate General (OTJAG) show:

•         The Army G-1 representative, in an E-mail to ARPERSCOM Retirement Branch, stated that the applicant should have been removed from the service years before his 67th birthday because of his hip condition and open heart surgery; however, for whatever reason, his unit did not process him (in the physical disability system). She stated, however, that the applicant qualified for early retirement under 10 U.S.C., Section 12731b, which states, in effect, that members of the Selected Reserve who are subject to involuntary separation from the Selected Reserve solely because they are unfit due to a medical disability, may elect early qualification for retired pay at age 60, provided they transfer to the Retired Reserve.

•         The Army G-1 representative, in an E-mail to OTJAG, requested an opinion from that office, stating that ARPERSCOM would not retire him because of the word "solely" in the law and since he was coming on MRD (mandatory removal date), he was not entitled. She stated that the Office of the Secretary of Defense for Reserve Affairs informed her that he was entitled – his medical conditions were not line of duty (LOD) related.

•         In response, an officer in the OTJAG opined that ARPERSCOM's interpretation appeared correct, and that it was difficult to say that the "12731b" requirement - that the applicant no longer meets the qualification for membership in the Selected Reserve solely because he was unfit because of physical disability, was met.

•         The Army G-1 representative again queried the OTJAG, stating that the applicant's "unit never processed him when he became medically unfit (definitely after the Bypass Surgery). If they had and he was passed (sic) his 15 years but near his MRD of 67 (for argument purposes – say at age 65) would he have been entitled to the early retirement under 12731b? I know he would have been under 12731a which expired 31 December 2001.??? … Can the G-1 direct his retirement under 12731b or do I have to refer him to ABCMR who will give it to him because it’s the fair and equitable thing to do since unit didn't do it in a timely fashion."

•         In response, the officer in the OTJAG stated that 10 U.S.C. 12731b did not become law until 5 October 1999, and if his disqualifying disability occurred before then, he would not have been eligible. He stated that he may have been eligible under 10 U.S.C. 12731a, if he reached 15 years of service during the period that statute authorized temporary special retirement (23 October 1992 to 31 December 2001); however, because the authority of 12731a had expired, he could not be retired under that statute. Nonetheless, the ABCMR could [do so].

21. Army Regulation 135-101 prescribes policy, procedures, and eligibility criteria for appointment in the Reserve Components of the Army for Army Medical Department Officers, and states in pertinent part, applicants for appointment as commissioned officers without concurrent call to active duty must be able to complete 20 years of qualifying service for retired pay before mandatory removal from an active status. It states, however, that applicants may be appointed with a waiver of service availability requirements. It also states that the grade and date of rank upon original appointment will be determined by the number of years of entry grade credit awarded. It further states that entry grade credit will be the sum of constructive service credit, e.g., 4 years credit for the basic qualifying degree (medical, dental, etc.), and 1/2 year credit for each year of full time experience, up to a maximum of 3 years; and credit for prior active commissioned service. Entry grade credit will be recorded on a DA Form 5074-R.

22. The Department of Defense Financial Management Regulation, paragraph 010101, states that the pay entry basic date (PEBD) is the date used by the Army to denote how much service a member has for the purpose of determining longevity pay rates. The pertinent portion concerning constructive service states that some medical and dental officers are entitled to extra credit for longevity purposes to reflect the time spent in medical or dental school. Medical and dental officers must meet certain criteria. That criteria included having had constructive service credit on or before 15 September 1981.

23. Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers. Paragraph 2-1 of that regulation states, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years (since changed to 6 years under certain circumstances) of his qualifying service as a Reserve component Soldier.

24. Paragraph 2-8 of the above-mentioned regulation describes qualifying service, as pertains to this case, as service performed in an active status in a Reserve component or in active federal service. After 30 June 1949, a Reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

25. Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards (MEBs), which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status. A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

26. Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

27. Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which Soldiers of the Reserve component, whether or not on extended active duty, apply for continuance in the active Reserve.

•         Paragraph 8-2 states that Soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

•         Paragraph 8-6 states that when a commander believes that a Soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the Soldier for medical evaluation. Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the Soldier’s unit commander for disposition under applicable regulations.

•         Paragraph 8-9 states in pertinent part that a Soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc.

28. 10 U.S.C. 12731a authorized temporary special retirement qualification authority during the period beginning on 23 October 1992 and ending on 31 December 2001 for members of the Selected Reserve who completed at least 15, and less than 20 qualifying years of service, who no longer meet the qualifications for membership in the Selected Reserve solely because they are unfit because of physical disability. Members must request transfer to the Retired Reserve.

29. 10 U.S.C. 12731b provided a special rule for members with physical disabilities not incurred in line of duty, and states in effect, that members of the Selected Reserve who completed at least 15, and less than 20 qualifying years of service, who no longer meet the qualifications for membership in the Selected Reserve solely because they are unfit because of physical disability, may upon application, be entitled to retired pay.

30. Army Regulation 140-10 prescribes polices, responsibilities, and procedures to assign, remove, or transfer Army Reserve Soldiers. It provides for removal of Soldiers from an active status, to include discharge and transfer to the Retired Reserve. Soldiers not removed for another reason will be removed when they reach the maximum age – 60 for other than general officers. Army Medical Department Officers in specified branches, e.g., Medical Corps, Dental Corps, etc., who possess a critical specialty which is short of total Army mobilization requirements, may upon application, be extended beyond their MRD. An officer who so requests must include with his application a statement that he meets medical fitness standards; and, if unable to complete 20 years of qualifying service for retired pay by the end of the requested extension of removal, a statement of understanding signed by the officer acknowledging that he understands that he may be removed before becoming eligible for retired pay.

31. Army Regulation 135-155 provides for the selection and promotion of Army Reserve officers, and states in pertinent part, that an officer who has been recommended for promotion to the next higher grade must be medically qualified before being promoted.

DISCUSSION AND CONCLUSIONS:

1. The 18 July 1983 DA Form 5074-R showing that the applicant was awarded 9 years, 3 months, and 8 days of entry day credit, is accurate, as is the 25 July 1983 document which shows credit in an active status for that period of time. The statement on the latter document indicating that the credit was not to be considered for purpose of computing basic pay, however, is incorrect, as is the statement in his 15 August 1983 appointment letter that his service was "not valid for pay entry basic date and was not the result of prior military service." Because of his prior commissioned service, and because he had been credited with 7 years of constructive service credit prior to15 September 1981, the 9 years, 3 months, and 8 days of service was valid for the purpose of computing his basic pay. Although the statements in those two documents are incorrect, they did not adversely affect his basic pay, e.g., his pay entry basic date, which was apparently adjusted to 4 January 1954.

2. Notwithstanding the applicant's contention and those of his counsel, the 7 years of constructive service credit awarded upon his appointment as a commissioned officer in 1983, however, is not credit awarded for retirement purposes, and despite the arguments offered, the above-mentioned documents do not so indicate. Constructive service is only applicable for determining longevity pay rates, in this instance, the applicant's PEBD.

3. The applicant does not have 20 years of qualifying service for retired pay, as required by law. The available evidence shows that as of 20 September 2001 he had 17 qualifying years of service. His qualifying service after that date until he transferred to the Retired Reserve on 28 June 2002 would not have given him the required 20 qualifying years. His request to correct his records to show 20 years of qualifying service for retired pay is not accepted.

4. The evidence showing the applicant's medical conditions, his heart condition, bilateral hip replacements, and right knee condition, are documented. Counsel points out that the applicant had hip replacement procedures beginning in 1970 (and again in 1998). Nonetheless, the applicant applied for, and was granted an appointment as a dental officer in 1983, an indication that he was medically qualified for appointment. He continued to serve in an active status, and in 1995 when he was 60 years old, was granted an extension of his MRD until 31 June 1999, an indication that he was medically fit for service.

5. In January 1997, subsequent to his heart operation, an Army medical officer gave him a permanent profile, and stated that he was not a deployable asset. He did, however, state that the applicant could still remain on active duty. Counsel's contention that he should have been referred to a PEB in 1997 because he did not meet the medical fitness standards at that time, is moot. The doctor at Fort Gordon did not see fit to refer him to the Army physical disability evaluation system. The applicant's officer evaluation report for the period ending on 21 February 1997 shows that he was able to perform his assigned duties and that his profile did not hinder his job performance. There is no evidence, nor has the applicant or counsel furnished any, that he was medically unfit for retention in 1997.

6. The applicant's evaluation reports, beginning in 1994, show that he was able to perform his duties. His latest three reports on file, the last ending on 30 November 2001, show that he passed the AFPT. In 1999 he again requested and was granted an extension of his MRD, a clear indication that he was determined to be medically fit for retention. His promotion to colonel in July 2001 is additional evidence that he was medically fit for retention.

7. Of note is the 7 June 2002 report that the medical evaluation findings indicate that the applicant did not meet the medical standards for retention because of his hip replacements and knee condition. Conducted a few weeks prior to his MRD, this evaluation was apparently a retirement physical evaluation. The report did indicate that his condition was not incurred while entitled to pay, and that his condition did not necessarily mean that he was unfit to perform his duties. Nonetheless, in response to a request from the applicant's command, the PEB at Walter Reed, while noting that his condition was neither incurred nor aggravated while in a duty status, stated that had the applicant requested a PEB to show that he was fit for service, the PEB would have found him unfit. The Washington, D.C. PEB indicated that he could have requested transfer to the Retired Reserve with early qualification for retired pay based on his having at least 15 years of qualifying service.

8. In this respect, the applicant is supported by a representative of the Army G-1, who, thwarted in her efforts because the ARPERSCOM would not go along with early qualification for retired pay for physical disabilities not incurred in line of duty, that is while not in a duty status (10 U.S.C., 12731b), queried the OTJAG. The OTJAG opined that ARPERSCOM was right. Consequently, the G-1 representative, indicating that he was unfit in 1997 and that his unit should have processed him as such, resolved to obtain an opinion showing that he was entitled to early retirement, either under 12731b or subparagraph a of that section. The OTJAG opined that he could be retired under the temporary special retirement authority 12731a of Title 10, if he was medically disqualified prior to 5 October 1999, and if this Board were inclined to do so.

9. Notwithstanding counsel's contentions, the 7 June 2002 report of his medical evaluation findings, the information provided by the Washington, D.C. PEB, and the efforts by the Army G-1 representative on the applicant's behalf, the evidence clearly shows that the applicant was performing his duties and was medically fit to do so throughout his military career. There is no evidence to show that he was medically unfit for retention. There is no evidence to indicate that the applicant's command was derelict or irresponsible because he was not referred to a PEB. There is no evidence to indicate that he should have been referred to the Army physical disability evaluation system. The applicant is not entitled to retirement under the provisions contained in 10 U.S.C., Section 12731a.

10. By the same token, and as indicated in the opinion from the OTJAG, the applicant was not entitled to early retirement under 10 U.S.C. 12731b. Nevertheless, the evidence does show that the applicant was afforded the option to request reassignment with early qualification of eligibility for retired pay at age 60 (he was then two weeks short of 67). He elected that option on 14 June 2002 and was reassigned to the Retired Reserve on 17 June 2002, not because of his MRD, but because he was medically disqualified for retention. Unlike his contention that he should be retired because of 20 qualifying years of service, an argument could be made that he was, in effect, assured that he would be retired with early qualification for retired pay, if he so elected.

11. It appears, then, that the applicant was led to believe that he would be entitled to retired pay. Consequently, in all good faith and as a matter of justice, the applicant's records should be corrected to show that he was reassigned to the Retired Reserve on 17 June 2002 with qualification for retired pay under the provisions of 10 U.S.C. Section 12731b, and that he receive retirement pay retroactive to that date.

BOARD VOTE:

__MHM__ __ALR __ __LCB __ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was reassigned to the Retired Reserve on 17 June 2002 with qualification for retired pay under the provisions of 10 U.S.C. Section 12731b, and that he receive retirement pay retroactive to that date.

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correction of the applicant's records to show 20 years of qualifying service for retired pay at age 60 effective on 18 June 2002 with all due pay and allowances, physical disability retirement, or early retirement under the provisions of 10 U.S.C., Section 12731a.





                  ____Melvin H. Meyer_______
                  CHAIRPERSON

---

INDEX

CASE ID	AR2003091500
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040330
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.