RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            08 APRIL 2004
      DOCKET NUMBER:   AR2003097050


      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. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. William D. 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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his “discharge from the U.S. [United
States] Army Reserves be changed to a medical discharge.”

2.  The applicant states, in effect, that in the spring of 2000 he
contacted his congressional representative regarding the status of his
medical retirement.  He notes that more than a year passed, without a
response.  He states that when he contacted the representative again, he
“received disturbing information that [he] had been separated under AR
[Army Regulation] 135-178, Chapter 15…without any knowledge or say so in
[his] career.”

3.  The applicant states that in the summer of 2001 he discussed with his
commander “alternative measures concerning [his] medical condition” as a
result of his permanent “P-3” profile.  He stated he was applying for a
“Medical Retirement.”  He states that “it was recommended” that he exercise
his option to be present at, or have his records reviewed by, a Medical
Review Board (MRB).

4.  After being referred to legal counsel, the applicant states he was
advised that “no action could be taken until the result of the MRB was
completed and [he] was notified.”  He states that his legal counsel agreed
to go with him to the MRB, but they were never notified.  He states neither
he, nor his legal counsel, were told that his records had been forwarded or
the results of the MRB.

5.  The applicant states that he was in a motor vehicle accident in
November 2001 while on his way to drill, hospitalized and then released the
same day.  He states that in December 2001, during his “recovery period” he
contacted his unit and was told that he “should not report for
duty/training until further notice from the unit commander.”

6.  In February 2002 he received notification that he had been discharged
effective 1 November 2001 and states that at “no time” did he ever request,
or agree either verbally or in writing to the discharge.

7.  The applicant states that he would not “throw away [his] hard earned
retirement benefits” and requests that his “Chapter 15 be withdrawn” and
that he be “allowed to retire from the Army as [he has] planned for 29
years.”

8.  In addition to his self-authored statement, he provides a copy of a
July 2003 response to his congressional representative, documents
associated with his administrative separation processing, his February 2002
discharge orders, and information concerning his 26 November 2001 motor
vehicle accident.



CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant was born in 1950
and initially entered active duty as a Regular Army Soldier in 1972.
Following his release from active duty in 1976, the applicant continued his
military service as an active member of the United States Army Reserve.  In
June 1992 he received his “20 year letter” confirming his entitlement to
retired pay at age 60.  He was promoted to pay grade E-8 in 1994.

2.  According to documents provided by the applicant, on 21 August 2001 the
applicant authenticated a notification document acknowledging receipt of a
proposed separation action and annotated a document with his election of
specific rights.  The opening paragraph of the document indicated that the
applicant was acknowledging “receipt of the Notification of Separation
Proceedings Under AR 135-178, Chapter 15, dated 28 June 2001” and that he
understood that he “may expect to encounter substantial prejudice in
civilian life if my service is characterized as General (under honorable
conditions), or under other than honorable condition.”  The second
paragraph of the document enabled the applicant to elect to consult with an
appointed counsel and paragraph 4 enabled the applicant to exercise his
“right to a hearing before an administrative separation board.”

3.  The applicant’s “defense counsel” authenticated his portion of the
document on 21 August 2001 indicating that the applicant had been advised
“of the basis for his contemplated separation and its effects, the rights
available to him, and the effect of a waiver of those rights.”

4.  The 28 June 2001 memorandum, which notified the applicant of his
pending administrative separation, which he acknowledged via the 21 August
election statement, was not available to the Board, or provided by the
applicant.

5.  A 22 October 2001 memorandum, prepared by the assistant staff judge
advocate to the commanding general of the 78th Division, noted that the
applicant “has medically disqualifying impairments which were neither
incurred nor aggravated while performing military duty, but existed prior
to entering military service.  Specially, he suffers from chronic
ulcerative colitis.”  The memorandum also noted that the applicant was
“eligible to transfer to the Retired Reserve…but has chosen not to do so.”

6.  An undated memorandum, signed by the commanding general, 78th Division,
directed that the applicant be discharged under the provisions of Army
Regulation 135-178, Chapter 15 and that he receive an honorable discharge.



7.  According to an undated statement, authored by a retired sergeant first
class, whom the applicant indicated in his application was his nephew, the
applicant was involved in a motor vehicle accident on 26 November 2001.
The applicant indicated in his application that he “was hospitalized,
treated and released later that day.”

8.  On 5 February 2002 orders were issued by the 78th Division honorably
discharging the applicant from the United States Army Reserve effective
1 November 2001.

9.  The July 2003 response to the applicant’s congressional representative,
which was also provided by the applicant, contains information provided by
the United States Army Reserve Command.  It notes that the applicant’s
concerns had all been previously addressed and that he had been provided
“extensive documentation.”  The letter noted that a “Fitness for Duty”
determination, dated 10 July 2000, found the applicant “medically
disqualified due to impairments that were neither incurred nor aggravated
while performing military duty.”  It also noted that on 6 September 2001
the applicant “was informed in writing regarding the relative benefits of
retirement as compared to administrative discharge.  He elected to not
request transfer to the Retired Reserve despite his eligibility for it.”

10.  Army Regulation 135-178, establishes the policies for provisions for
the administrative separation of enlisted Soldiers of the Army National
Guard and Army Reserve.  Chapter 3 of that regulation outlines the
guidelines for separation, including when the use of the “Notification
Procedure” is required.  When the specific reason for separation requires
use of the Notification Procedure, the individual’s commander is required
to notifying the Soldier utilizing a specific memorandum format which
includes a specific set of guidelines.  The notification memorandum, when
required, includes the Soldier’s right to request an administrative Board
if he or she has 6 or more years of service.  It also includes information
concerning the least favorable characterization of service authorized for
the propose separation.

11.  Chapter 15 of Army Regulation 135-178 contains three sections
outlining the basis for separating enlisted Soldiers.  Section I applies to
the separation of Soldiers for a variety of reasons, including attainment
of maximum allowable age, early discharge of a Soldier with a bar to
reenlistment, and those found medically unfit for retention.  Section II
applies to the separation of Soldiers from the Delayed Entry Program, and
Section III applies to Soldiers dropped from the rolls of the Army because
of civil confinement.  Only Soldiers being separated under Section II
require use of the Notification Procedures outlined in Chapter 3 of the




regulation.  Soldiers being separated under Section I as medically unfit
for retention are entitled to an honorable discharge unless a general
discharge is warranted.  Additionally, Soldiers determined to be medically
unfit for retention that are eligible for transfer to the Retired Reserve
may request transfer to the Retired Reserve in lieu of discharge.

12.  Title 10, United States Code provides for disability processing of
Reserve Component Soldiers who incur or aggravate an injury or disease in
the line of duty while performing inactive or active duty for training.

13.  Army Regulation 635-40 states that in order for Soldiers of the
Reserve Components to be compensated for disabilities incurred while
performing duty for 30 days or less, there must be a determination by a
Physical Evaluation Board that the unfitting condition was the proximate
result of performing duty.

14.  Army Regulation 635-40 states, in effect, that Reserve Component
Soldiers will be separated from the Reserve when they no longer meet
medical retention standards.  Such separation will be without benefits if
the unfitting condition was not incurred or aggravated as the proximate
result of performing annual training, active duty special work, active duty
for training, or inactive duty training.

15.  As a matter of information, Under Secretary of Defense Memorandum,
29 October 1999, Subject: Former Reserve Member Entitlements, announced
that former members of the Reserve Components who are eligible to receive
retired pay at age 60 under Title 10 United States Code, section 12731, but
who have terminated their Reserve status are entitled to receive benefits
provided for under chapter 54, title 10, United States Code.
Identification (ID) cards reflecting the appropriate benefits are now
available at Real-time Automated Personnel Identification System sites.
Access to Commissary, Exchange and Morale, Welfare and Recreation
facilities will be granted to those who present photo identification
accompanied by written notification of eligibility to receive retired pay.


16.  In accordance with this provision, members are no longer required to
transfer to the Retired Reserve in order to receive those benefits.  They
are simply required to take their 20-year letter (Notification of
Eligibility to Receive Retired Pay at age 60) and a photo identification to
the nearest military ID Card facility for issuance of their military ID
card.  In the interim, they may use the facilities by showing the 20-year
letter and a photo ID until they are issued a military ID card.  It should
be noted however; that the issuance of a military ID Card will not negate
the responsibility to apply for Retired Pay when reaching
59½ years of age.



17.  A former member is defined as an individual eligible for retired pay
at age 60, or, if age 60 or over, receiving retired pay for non-Regular
service under Chapter 1223 of Title 10 United States Code, but who has been
discharged from the service and who maintains no military affiliation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence indicates that the applicant was discharged from the Army
Reserve as a result of his chronic ulcerative colitis which was “not
incurred or aggravated as the proximate result of performing annual
training, active duty special work, active duty for training, or inactive
duty training.”  As a result he was not entitled to any Army disability
benefits, in spite of the fact that the basis for his discharge was a
medical condition.

2.  The applicant’s argument that he was discharged “without any knowledge
or say so in [his] career” is not supported by the evidence available to
the Board.  The evidence confirms that the applicant signed a statement on
21 August 2001 notifying him that he was being processed for administrative
separation actions as a result of not meeting medical retention standards.
While it may have been unfortunate that his command utilized a memorandum
that was intended for use only when the “Notification Procedure” was
required, and thus caused the applicant to elect certain benefits which had
no bearing on his separation processing, the use of that memorandum did not
create any error or injustice and would not have impacted on the
applicant’s resulting discharge.

3.  While it is unclear why the applicant’s command took so long after the
commanding general of the 78th Division approved the applicant’s discharge
and before the discharge orders were actually issued, the delay did not
result in any error or injustice.  It is possible that the delay resulted
from the command waiting to determine if the applicant’s November 2001
motor vehicle accident would have any impact on the discharge process.
There is no evidence that it did and as such the discharge orders were
ultimately published with a date retroactive to the time frame the
discharge was originally approved.

4.  The evidence also indicates that the applicant was given an opportunity
to request transfer to the Retired Reserve but chose not to exercise that
right.  However, since the applicant has in his possession a 20-year letter
for retired pay purposes, he will remain entitled to those Retired Reserve
benefits.  He has not thrown “away [his] hard earned retirement benefits”
simply because he was discharged as opposed to being transferred to the
Retired Reserve.





5.  In order to justify correction of a military record the applicant must
show, 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RJW__  __GJW__  __WDP__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ___Raymond J. Wagner______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003097050                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040408                                |
|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.                      |                                        |