RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 February 2004
      DOCKET NUMBER:   AR2003088362


      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. Edmund P. Mercanti            |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Samuel A. Crumpler            |     |Chairperson          |
|     |Mr. Curtis L. Greenway            |     |Member               |
|     |Ms. Regan K. Smith                |     |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, in effect, that his military status be changed
from military retiree performing active duty to Army Reservist performing
active duty on the Active Duty List (ADL).

2.  The applicant states that he was retired under the Temporary Early
Retirement Authority (TERA) due to injuries he received from a motor
vehicle accident.  Since his retirement, his injuries have been healed by
surgical intervention and he has now been returned to aviation service.

3.  The applicant provides: copies of the Academic Evaluation Reports
(AER’s) and Officer Evaluation Reports (OER’s) he was given prior to his
retirement; other excerpts from his Official Military Personnel File
(OMPF); a DA Form 4186, Medical Recommendation for Flying Duty, which
indicated that he was cleared to perform aviation duties as of 17 March
2003; Orders 063-2 dated 4 March 2003 directing that he perform aviation
duties with entitlement to Aviation Career Incentive Pay; a memorandum from
the Total Army Personnel Command dated 4 March 2003 which states that the
applicant’s aviation service was terminated on 19 September 1997 for a
history of unsuccessful decompressive laminectomy for herniated nucleus
pulposis.  However, his aviation service was reinstated effective 3
February 2003 because the medical condition requiring termination no longer
existed.  The applicant also submits documentation and correspondence
relating to his request and the approval for reinstatement to aviation
service.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a warrant officer, military occupational
specialty (MOS) 153BO, on 27 July 1993.  He had 10 years, 8 months and
19 days of prior active federal service.

2.  He performed duties as a UH-1V pilot and was promoted to Chief Warrant
Officer Two (CW2).

3.  On the OER for the period ending 8 May 1997, it was stated that the
applicant was seriously injured in an auto accident and “has worked
diligently to rehabilitate and return to flight status.  As of this date,
the prognosis for his full recovery is poor.”  The applicant’s senior rated
stated that the applicant “has done an outstanding job in all aspects of
his assigned duties . . . His potential for further duty as an aviator is
very questionable due to his medical status.”




4.  The applicant’s next OER states that “Profile does not hinder officer’s
ability to perform assigned duties” and ”Excellent performance of duty by a
topnotch officer.”

5.  The applicant’s final OER stated that he “has performed all duties in
an outstanding manner.”

6.  On 30 April 1999, the applicant was honorably discharged due to his
placement on the retired list under the TERA.  He had 5 years, 9 months and
4 days of active federal service during that period, giving him a total of
16 years, 9 months and 17 days of active federal service.

7.  On 9 April 2003, orders were issued recalling the applicant to active
duty from the retired list.  He was to report on 27 July 2003 for a 3-year
active duty commitment.

8.  The TERA was given to the military services by Congress during the
drawdown of the military in the early 1990’s as a force reduction tool.  It
provided for the voluntary separation of both enlisted and officer
personnel in selected specialties.  In order to qualify for a TERA, the
soldier had to be fully qualified for retention on active duty.  Soldiers
who were undergoing evaluation under the disability evaluation system (DES)
were not eligible for the TERA.

9.  Army Regulation 635-40 provides that the medical treatment facility
commander with the primary care responsibility will evaluate those referred
to him and will, if it appears as though the member is not medically
qualified to perform duty or fails to meet retention criteria, refer the
member to a medical evaluation board.  Those members who do not meet
medical retention standards will be referred to a physical evaluation board
(PEB) for a determination of whether they are able to perform the duties of
their grade and military specialty with the medically disqualifying
condition.  For example, a noncommissioned officer who receives above
average evaluation reports and passes Army Physical Fitness Tests (which
have been modified to comply with the individual’s physical profile
limitations) after the individual was diagnosed as having the medical
disqualification would probably be found to be fit for duty.  The fact that
the individual has a medically disqualifying condition does not mandate the
person’s separation from the service.  Fitness for duty, within the
parameters of the individual’s grade and military specialty, is the
determining factor in regards to separation.  If the PEB determines that an
individual is physically unfit, it recommends the percentage of disability
to be awarded which, in turn,




determines whether an individual will be discharged with severance pay or
retired.  An Army disability rating is intended to compensate an individual
for interruption of a military career after it has been determined that the
individual suffers from an impairment that disqualifies him or her from
further military service.    In this regard, the Army rates only conditions
determined to be physically unfitting, thus compensating the individual for
loss of a career.

10.  In the processing of this case, the staff of the Board contacted the
Human Resources Command (HRC), Alexandria, Virginia.  The HRC stated that
the Army is authorized 60 warrant officers in the applicant’s MOS.
However, the Army currently has 95 warrant officers on active duty which
hold the applicant’s MOS, which makes this MOS 158 percent strength.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant’s contentions, he was not retired due to
physical disability.  He was retired at his own request under the TERA.

2.  While the applicant had been taken off of flight service after his
automobile accident, his OER’s confirm that he was able to perform
alternate duties.  As such, he was physically fit when he retired.

3.  The fact that the applicant’s physicians were able to heal his medical
problems through surgical intervention after his retirement, and as a
result the applicant was restored to aviation service, does not alter the
appropriateness of his voluntary request for retirement under the TERA.

4.  The applicant was recalled to active duty in his status as a military
retiree.  This is not an uncommon practice during National emergencies.
His orders are self-terminating.  When he completes his 3-year active duty
tour, he will revert to his status on the Retired List.

5.  Since there was no error or injustice in either the applicant’s
retirement under the TERA, or his recall to active duty in his status as a
retiree, there is no basis to recommend approval of his request.

6.  In addition, it is noted that the applicant’s MOS is currently at 158
percent strength.  The needs of the Army would not be furthered by the
applicant’s retention on active duty after his tour of active duty.






BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___rks___  ____sac_  ___clg___  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.





            _________Samuel A. Crumpler_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003088367                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040203                                |
|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.       |135.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |