RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 04 MAY 2004
         DOCKET NUMBER: AR2003093401


         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. Stanley Kelley		Chairperson
Mr. Joe Schroeder		Member
Mr. William Powers		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that his military records be corrected to show that he was retired under the provisions of Public Law 103-337, section 517 (15-year retirement law), now codified under Title 10, United States Code, section 12731a.

2. The applicant states that he suffered a stroke on 18 April 1991 while serving with his Reserve unit in the Gulf War. A Physical Evaluation Board (PEB) found him fit for duty. He had heart surgery in December 1994. A PEB found him fit for duty. An Army nurse took it upon herself to have him discharged in 1995 with no compensation. Because he had over 15 years of qualifying service for retired pay at age 60, he should have been given a medical retirement.

3. The applicant provides a copy of his retirement points statement, copies of medical consultation sheets, a copy of a 27 August 1992 memorandum from the Womack Army Medical Center, a copy of a Statement of Medical Examination and Duty Status (DA Form 2173) dated 14 April 1991, a copy of a 4 December 1991 memorandum from the Army Medical Department Activity at Fort Bragg, North Carolina requesting that the applicant be retained on active duty, a copy of two pages of a 16 November 1991 Medical Evaluation Board summary, a copy of a 4 February 1992 memorandum requesting that the applicant be retained on active duty for continued medical care, a copy of a 4 December 1991 MEB proceedings, a copy of a medical air evacuation summary, a copy of a 10 June 1994 DA Form 2173, a copy of a 31 August 1994 Report of Investigation, a copy of a 14 February 2003 Department of Veterans Affairs (VA) letter, a copy of a 6 September 1994 letter from the Eisenhower Army Medical Center (AMC) to the Commander of the 312th Field Hospital indicating that the applicant had been returned to duty, a copy of a 19 December 1994 letter from the Eisenhower AMC to the applicant's civilian employer, a copy of a 2 June 1994 medical record report, a copy of a page 2 to a medical record report, a copy of a report of medical examination, and page 2 of a report of military history, a copy of a medical record report indicating that the applicant was being medically boarded, a copy of an unsigned and undated MEB proceedings, and a copy of a 26 October 1994 physical profile.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1. Counsel requests that the Board evaluate all medical evidence and render a fair and equitable decision. Counsel states that a review of the record reflects that the applicant has set forth his contentions as stipulated. Any reasonable doubt should be resolved in favor of the applicant.

2. Counsel provided no evidence.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 3 November 1995. The application submitted in this case is dated 24 June 2003.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant's records show his date of birth as 20 May 1939. His statement of retirement points show that his military service began in August 1955. He served in the Navy in the enlisted ranks from August 1958 to August 1960. On 25 November 1980 he was appointed a Reserve captain in the Army Nurse Corps. He was ordered to active duty on 31 March 1981. He was released from active duty on 2 October 1981 and transferred to the 312th Evacuation Hospital, a Reserve unit in Greensboro, North Carolina. In November 1990 he was ordered to active duty with his Reserve unit in support of Operation Desert Shield/Desert Storm.

4. On 14 April 1991 while on active duty in Saudi Arabia, the applicant suffered a stroke and was air evacuated to Landstuhl Army Medical Center in Germany. In June 1991 he was reassigned to the Medical Holding Company at Fort Bragg, North Carolina.

5. The applicant underwent an examination on 13 November 1991 at Womack Army Medical Center at Fort Bragg for a MEB. The examination indicated that laboratory findings revealed the presence of a pontine lesion, a balance deficit, and easy fatigability of the left lower extremity with running. He was referred to a MEB. On 4 December 1991 a MEB recommended that he be referred to a PEB because of a pontine lacunar infarction. The applicant did not agree with the findings and recommendation of the MEB and attached an appeal. The appeal is not available to this Board. On 2 March 1992 the original findings and recommendation of the MEB were confirmed.

6. On 18 June 1992 the Total Army Personnel Command (PERSCOM) informed the Commander of WOMACK AMC that the findings of the PEB which convened on 18 March 1992 were approved, and that the applicant was found to be physically fit to perform his duties. The PEB is not available to this Board.

7. The applicant was released from active duty on 21 October 1992 and transferred to his Reserve unit.

8. On 26 July 1993 the applicant was discharged from the Army Reserve effective on 22 June 1993 because he had reached his mandatory removal date (MRD). The order effecting that discharge, however, was revoked on 13 September 1993. On 15 December 1993 the Army Reserve Personnel Center at St. Louis approved the applicant's request for extension of his MRD, stating that he could remain in an active status until 31 May 1999.

9. On 7 April 1994 the applicant was promoted to lieutenant colonel effective on 18 May 1993.

10. On 2 June 1994 while on annual training at Fort Gordon, Georgia, the applicant suffered chest pains and was transferred to the hospital. On 20 June 1994 he underwent a coronary artery bypass grafting times three. On 28 July 1994 the applicant was given a temporary profile of 3 1 1 1 1 1. On 29 July 1994 the applicant was discharged from the Eisenhower AMC at Fort Gordon and returned to duty with the 312th Field Hospital.

11. An 8 September 1994 medical record report from the Eisenhower AMC shows that the applicant had an uncomplicated postoperative course and was discharged to convalescent leave. He was seen after 30 days of convalescent leave and was doing well. All his wounds were healing adequately. That report indicates that the applicant was being medically boarded in that he was having a 120-day trial of duty with a temporary profile, after which he would be evaluated by his internist or cardiologist.

12. A page of an undated MEB proceedings shows that the applicant's condition was described as severe coronary artery disease, status post brainstem cerebrovascular accident with residual left sided weakness, hypertension, and hypercholesterolemia, and that he was returned to duty for a 120-day trial of duty.

13. On 29 October 1994 the applicant was awarded a temporary profile of 3 1 1 1 1 1 because of his status post coronary artery bypass graft. The profile prevented him from taking the physical fitness test. He could walk at his own pace and distance.

14. The applicant performed annual training with his unit at Fort Bragg from 6 August 1995 to 19 August 1995.

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15. On 14 October 1995 the 120th Army Reserve Command surgeon stated that a review of the applicant's medical records revealed that he had multiple medical problems to include diabetes, heart disease and coronary bypass surgery, and cerebrovascular disease with residuals from a stroke. He stated that his profile made him unfit for retention in a deployable unit and prevented him from performing an aerobic event on the physical fitness test. The surgeon stated that the applicant was unfit for retention in the Reserve and recommended that he be transferred to the IRR (Individual Ready Reserve).

16. The applicant was reassigned to the Army Reserve Control Group (Reinforcement) at St. Louis on 3 November 1995. The order effecting his reassignment shows that it was a voluntary transfer.

17. While assigned to the IRR, the applicant was twice considered and twice not selected for promotion, and so notified – on 5 January 1998 and on 13 December 1998.

18. The applicant's retirement points statement shows that he earned membership points until 8 April 2003, indicating that he remained assigned to the IRR until that date. The applicant did not earn any other points during his assignment to the IRR. His statement shows that he has 18 qualifying years of service, 2 years short of the 20 qualifying years needed to receive retired pay at age 60.

19. Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, remove, or transfer Army Reserve Soldiers. It outlines the composition of the Ready Reserve (IRR), and states in pertinent part, that the IRR consists of trained individual Soldiers assigned to various control groups for control and administration who are available for mobilization in time of war or a national emergency declared by Congress. Soldiers assigned to the IRR are in an active Reserve status.

20. Army Regulation 40-3, chapter 7, provides for MEBs, and are convened to document a service member’s medical status and duty limitations insofar as duty is affected by the member’s medical status. Situations that require consideration by a MEB include those involving Reserve component personnel on active duty for training (ADT) or inactive duty for training (IDT), whose fitness for further military service upon completion of hospitalization is questionable, and those who require hospitalization beyond the termination of their tour of duty. Consideration by a MEB also includes those involving a Reserve component member who requires evaluation because of a condition that may render him unfit for further duty.

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21. Army Regulation 40-501 provides information on medical fitness standards for enlistment, retention, and related policies and procedures. Chapter 9 sets basic policies and procedures for medical examinations. It covers those examinations used to medically qualify individuals for entrance into and retention in the Army Reserve. Normally, Reserve component soldiers who do not meet the fitness standards will be transferred to the Retired Reserve or discharged. They will be transferred to the Retired Reserve only if eligible and if they apply for it.

22. Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of her office, rank, grade or rating because of disability incurred while entitled to basic pay.

23. 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, 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.

24. 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.

25. 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.

26. 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.

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27. 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. Title 10, United States Code, section 12731a allows members of the Selected Reserve who are involuntarily separated between 23 October 1992 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 AND CONCLUSIONS:

1. The evidence confirms that he was in fact medically unfit for continued service. He should not have been transferred to the IRR, either voluntary or involuntary.

2. The applicant was eligible to transfer to the Retired Reserve. He should have been permitted to participate in the early retirement program and transfer to the Retired Reserve with entitlement to retired pay at age 60 based on attaining the minimum of 15 years of qualifying service toward Reserve component retirement.

3. Consequently, the applicant's records should be corrected to show that he transferred to the Army Reserve Control Group (Retired) effective on 3 November 1995, and that he is entitled to retirement pay at age 60 under the provisions of Title 10, United States Code, section 12731a. He should receive that pay retroactive to the date that he reached age 60. The order transferring him to the Army Reserve Control Group (Reinforcement) on 3 November 1995 is null and void and of no force or effect. Personnel actions and retirement points earned, subsequent to his transfer to the IRR on that date, are likewise null and void and of no force or effect.

BOARD VOTE:

__SK __ ___JS___ __WP ___ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant was transferred to the Army Reserve Control Group (Retired) on 3 November 1995, that he is entitled to retirement pay under the provisions of Title 10, United States Code, section 12731a, and that he should receive that pay retroactive to the date that he reached age 60. The order transferring him to the Army Reserve Control Group (Reinforcement) on 3 November 1995 is null and void and of no force or effect, as are personnel actions and retirement points earned subsequent to that date.





                  ____ Stanley Kelley_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003093401
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040504
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.	136.06
2.
3.
4.
5.
6.