RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 February 2004
         DOCKET NUMBER: AR2003083813


         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda M. Barker		Member
Mr. Richard T. Dunbar		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 he be transferred to the Retired Reserve.

2. The applicant states that he completed over 18 years of service and has had arthroscopic surgery on his right knee, prior to activation from the Reserve. After several months of service as a military policeman, he could no longer fulfill the physical demands. His condition did not negate his abilities in other military occupational specialties (MOS). He was discharged without consideration of his time in service or existing physical and mental abilities. He also states that he should have been considered for separation per Chapter 1223, Section 12731a, of Title 10, United States (U.S.) Code. His records would reflect that his condition was aggravated by service. He goes on to state that he is still able to function within limits and those limits do not negate his abilities to function as a qualified member of the Armed Forces.

3. The applicant provides copies of: an email from the 99^TH Regional Support Command (RSC); his DD Form 214 (Certificate of Release or Discharge from Active Duty), a Statement of Retirement Points; and a memorandum from the 99^th RSC Inspector General (IG). The applicant subsequently provided a DA Form 4187 (Personnel Action).

CONSIDERATION OF EVIDENCE:

1. The applicant's records contain a copy of his entrance examination, dated 28 February 1986, which was prepared prior to his entry in the US Army Reserve (USAR). The applicant was found qualified for enlistment with a 111111 physical profile. It also showed that he had a fracture, left achilles tendon and fractured right hand.

2. He enlisted in the USAR on 6 March 1986, with prior military service, as an armor reconnaissance specialist (11D). He continued to serve through a series of continuous reenlistments.

3. He enlisted in the Pennsylvania Army National Guard (PAARNG) on 25 August 1992. He was promoted to specialist (SPC/E-4) effective 2 January 1993. He was separated from the PAARNG effective 18 September 1997 and enlisted in the USAR on 19 September 1997.

4. The applicant completed the basic Military Police Course Phase II from 1 to 14 August 1998 and was awarded the MOS of 95B10. The applicant was mobilized in support of current operations at Fort Drum, New York effective 15 October 2001.
5. On 19 March 2002, a Medical Evaluation Board (MEB) considered the applicant's case. The MEB diagnosed the applicant as having chronic patellar tendonitis and traction osteophyte and mild arthritic changes to the right knee, which were both medically unacceptable, existed prior to service (EPTS), and was service aggravated. The applicant did not desire to continue on active duty. The MEB indicated that continuance on active duty under the provisions of Army Regulation 635-40 was not medically contraindicated. The findings and recommendations were approved, and the applicant was referred to a Physical Evaluation Board (PEB). The applicant concurred with the MEB's findings and recommendations.

6. On 12 April 2002, the applicant's case was considered by an informal PEB. On that same day, the PEB determined the applicant to be unfit for continued service due to chronic right knee pain with a knee injury which required arthroscopic surgery for a medial meniscal tear in 2001 while on active duty. He was activated from the Reserve and came on active duty on 4 November 2001. He performed physical training without restrictions and his knee started to hurt, which has persisted. Arthroscopy performed on 9 September 2001 was for a chondroplasty and debridement of a meniscal tear. There was a full range of motion and no joint instability. There were no focal neurovascular deficiencies as related to the knee and no evidence of permanent service aggravation.

7. The PEB reviewed the medical evidence of record and concluded that there was sufficient evidence to substantiate an EPTS condition which rendered the applicant unfit. His condition had not been permanently aggravated by service but was the result of natural progression. EPTS conditions were not compensable under the Army Physical Disability System and the proper disposition was separation from the Army without entitlement to disability benefits.

8. The applicant indicated that he did not desire to continue on active duty under the provisions of Army Regulation 635-40. He concurred with the findings of the PEB and waived a formal hearing of his case on 22 April 2002. His decision was based on his request to apply for early retirement, in accordance with Department of Defense Instruction (DODI) 1332.38, for Ready Reserve members, to be eligible for retirement benefits at age 60 in lieu of accepting separation without benefits under the disability system.

9. He was honorably discharged on 14 August 2002, under the provisions of Army Regulation 635-40, paragraph 4-24b(4), disability, EPTS, PEB, without severance pay.

10. The applicant’s records contain a copy of his Chronological Statement of Retirement Points, dated 30 August 2002, which shows that he had completed 18 years and 2 months of qualifying service for retirement purposes.

11. The applicant provided a copy of an email from personnel at the 99^th RSC. He was informed that they were unsuccessful in obtaining a revocation of his separation orders and that his only alternative was to apply to this Board.

12. On 7 November 2002, the IG informed the applicant that an inquiry was conducted concerning the circumstances of his discharge. The IG stated that personnel at the 99^th RSC were unsuccessful in obtaining a revocation of his separation orders to show that he was transferred to the Retired Reserve. He was directed to apply to this Board for relief.

13. The applicant provided a copy of a DA Form 4187 to the Army Reserve Personnel Command (AR-PERSCOM) after his application to this Board. He requested issuance of a Selected Reserve 15-Year Letter. He indicated that he had completed 15 but less than 20 years of qualifying service for non-regular retired pay. He understood that he was subject to involuntary separation from the Selected Reserve solely because he was unfit due to a medical disability. He also indicated that he had the opportunity to elect early qualification for retired pay at age 60 and elected transfer to the Retired Reserve. He was also aware that he may not be reassigned from the Retired Reserve without approval of the Secretary of the Army.

14. Army Regulation 40-501 provides policy on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 lists the various medical conditions and physical defects that may render a soldier unfit for further military service. Paragraph 3-13(c) states that internal derangement of the knee is a cause for referral to an MEB.
Subparagraph 3-14(e) states that chondromalacia or osteochondritis dissecans, severe, manifested by frequent joint effusion, more than moderate interference with function, or with severe residuals from surgery are causes for referral to an MEB.

15. Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Total Army Personnel Command (PERSCOM) upon the final decision of the Physical Disability Agency (PDA). It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USADPA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations. Subparagraph 4-24b(4) applies to separation for physical disability without severance pay.



16. Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

17. Army Regulation 135-178, in effect at the time, established the policies, standard, and procedures governing the administrative separation of enlisted soldiers from the reserve components. Paragraph 1-3 stated, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective dates of discharge unless there was evidence of manifest error or fraud. After the effective date of discharge, orders could be amended by the separation authority only to correct manifest errors such as the wrong character or service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

18. DODI 1332.38 implements policy, assigns responsibilities, and prescribes procedures under DODI 1332.18 for retiring or separating service members because of physical disability; making administrative determinations for member with service incurred or aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits under Title 10, USC because the condition is unrelated to military status and duty.

19. Sections 12731 through 12739 of Title 10, United States (US) Code, authorize retired pay for Reserve Component military service. Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more.

20. Title 10, US Code, Section 12731b (Special rule for members with physical disabilities not incurred in line of duty), states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.







21. Army Regulation 135-180 also states in paragraph 2-3, that a 20-Year Letter will be issued to the Reserve component soldier within 1 year after they complete 20 years of qualifying service for retirement. This letter will be issued by the Chief of the National Guard Bureau for Army National Guard soldiers and by the Commander of the Army Reserve Personnel Command (AR-PERSCOM) for
USAR soldiers. The letter, once issued, may not be withdrawn or revoked. The soldier may voluntarily elect to transfer to the Retired Reserve or be discharged from the Army. A 15-Year letter will be issued to a Selected Reserve member who completed at least 15 but less than 20 years of qualifying service under Title 10, US Code, Section 12731a and 12731b.

DISCUSSION AND CONCLUSIONS:

1. While the applicant contends that physical training aggravated his medial meniscal tear while he was on active duty, there is no medical evidence to support that contention.

2. On the date the applicant was discharged, he had completed 18 years and 2 months of qualifying service for retirement purposes.

3. The evidence of record shows that the applicant was eligible for transfer to the Retired Reserve under Title 10, US Code, Section 12731b; however, he was not aware of the proper procedures on how to apply. It appears that, had he been informed that he needed to request transfer to the Retired Reserve by submitting an application through channels, after completion of his PEB, he would have elected to do so.

4. The applicant's PEB proceedings indicated that he requested early retirement; however, he failed to do so in writing and there is no evidence to show that a request was submitted after the PEB was finalized.

5. Inasmuch as the applicant meets eligibility requirements for assignment to the Retired Reserve, it would be equitable and just to correct his military records.

6. However, there are no provisions in active Army Regulations to transfer a Regular Army enlisted member to the Retired Reserve. As such, the applicant's records will have to be corrected to show that he was released from active duty and transferred to the USAR Control Group (Reinforcement) on the day of his discharge, and he was transferred from the USAR Control Group (Reinforcement) to the USAR Control Group (Retired) the following day.

BOARD VOTE:

__js____ ___lb____ __rd____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected:

a. by correcting the 4 June 2002 discharge order from the USAR to show that he was released from active duty by reason of completion of required active service effective 14 August 2002 and returned to control of the USAR;

b. by voiding the DD Form 214, dated 14 August 2002;

         c. by issuing a new DD Form 214 that shows he was released from active duty and returned to his USAR unit under authority of Army Regulation 635-200, chapter 4, for completion of required active service with a separation code of "MBK" and a reentry code of "3";

         d. by issuing orders from the cogent USAR unit to show that he was transferred to the Retired Reserve effective 15 August 2002 with entitlement to early qualification for retirement benefits at age 60;

         e. by issuing him a Notification of Eligibility for Retired Pay at Age 60 (15-Year Memorandum) certifying eligibility for non-regular retired benefits at age 60.




                  _____John N. Slone__
                  CHAIRPERSON

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INDEX

CASE ID	AR3003083813
SUFFIX
RECON
DATE BOARDED	20040210
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20030814
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	338
2.
3.
4.
5.
6.