RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 22 January 2004
         DOCKET NUMBER: AR2003089482


         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:

Ms. Joann Langston		Chairperson
Mr. Ronald J. Weaver		Member
Mr. Arthur A. Omartian		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).


1. The applicant requests that her discharge status be changed to Retired Reserve. In addition, she requests that her reason for discharge from the US Army Reserve (USAR) Control Group (Reinforcement) be changed from "non-participation" to "cogent personal reasons."

2. The applicant states that her intention is to be reassigned to a troop program unit (TPU). She was released due to non-participation because she was unable to fulfill the statutory requirements to earn 50 points per year. She was suffering from a botched medical procedure that caused tremendous emotional and physical pain. Therefore, she felt her reason for discharge should be changed to "cogent personal reasons." Her face was badly burned due to the misapplication of chemical and medical procedures. The resultant scarring devastated her and her husband. The physicians were convicted of assault and wanton endangerment. Her energy was exhausted and she had very little time and energy for her military duties. She is now much better, both emotionally and physically. She continues to be seen by a plastic surgeon. She has maintained her loyalty to the USAR and is prepared to give her all. She is now asking that full consideration be taken in her case and that she be reassigned in the Individual Ready Reserve (IRR).

3. The applicant provides two copies of her separation orders, medical documents, a letter from the Louisville, Kentucky Prosecutor, and a DA Form 4187 (Personnel Action), dated 28 May 2003.

CONSIDERATION OF EVIDENCE:

1. The applicant’s military records show she enlisted in the USAR on 14 April 1976. She enlisted in the Regular Army on 23 June 1976. She was honorably discharged on 22 June 1979. She enlisted in the USAR on 1 August 1980 where she continued to serve through a series of continuous reenlistments.

2. She was promoted to Sergeant Major (SGM/E-9) with a date of rank and effective date of 1 January 1996. On that same day the applicant was appointed as a Command Sergeant Major (CSM).

3. On 22 October 1998, the Army Reserve Personnel Command (AR-PERSCOM) notified the applicant that she had completed the required years of service to be eligible for retired pay upon applicant’s application at age 60 (20-Year Letter).




4. On 27 June 2000, orders were published releasing the applicant from her TPU with reassignment to the USAR Control Group (Reinforcement) effective 1 April 2000, due to cogent personal reasons, in the rank of CSM.

5. The applicant provided medical evidence pertaining to her facial scars resulting from a procedure performed by her physician. The physician nor her command recommended the applicant for a Medical Evaluation Board (MEB) or any form of physical disability processing.

6. On 10 January 2001, orders were published discharging the applicant from the USAR Control Group (Reinforcement) effective 10 January 2001, in the rank of CSM.

7. On 10 May 2002, the prosecutor informed the applicant that her physicians pled guilty in her case.

8. On 19 May 2003, orders were published releasing the applicant from the USAR Control Group (Reinforcement) with assignment to the Retired Reserve effective 19 May 2003, due to non-participation.

9. The applicant provided a copy of her DA Form 4187, dated 28 May 2003. This form shows that she requested reassignment to a TPU after her transfer to the Retired Reserve. The commander's approval blocks are blank.

10. On 22 July 2003, the 81 ^st Regional Support Team (RST) notified the Army Review Board Agency Support Division, St Louis, that the applicant's discharge orders were revoked and that Retired Reserve orders were issued. The 81 ^st RST also stated that the applicant was transferred to the Retired Reserve in accordance with regulation and was in receipt of a 20-Year Letter.

11. The applicant's Chronological Statement of Retirement Points shows that she completed 21 years of qualifying service for retirement purposes. It also shows that she had accrued less than 50 points in her last 3 years in the USAR.

12. In the processing of this case an advisory opinion was provided by the
81 ^st RST, Personnel Actions and Services Directorate. The 81 ^st RST stated that the applicant, a senior noncommissioned officer, CSM, was aware of her requirements and responsibilities to maintain 50 points each retirement year for retention in an active status. She was required to counsel her subordinates on the same. Upon transfer to the IRR (Control Group (Reinforcement)) in April 2000, she failed to maintain the minimum 50 points each year for retirement. She was able to enroll in correspondence studies to earn retirement points but failed to do so. Based on the fact that she was in receipt of her 20-Year Letter, she was transferred to the Retired Reserve for non-participation (failure to maintain the required 50-point minimum).
13. The applicant was provided a copy of this opinion for possible comment prior to consideration of his case.

14. In her rebuttal, she stated that she was requesting reinstatement into the Ready Reserve. The opinion only provided the basic facts of her case. She was a victim of gross negligence and malpractice by a physician assistant. Her face was badly burned and scarred due to his negligence. She was badly disfigured which caused an immediate change in her life, both emotionally and physically. She had to begin seeking competent medical advice on how to start the long series of rebuilding surgeries in an attempt to fix her damaged face. She was consumed by ongoing complex legal actions. Various individuals interviewed her repeatedly as her case was being put together against the offending parties.

15. She was aware of the requirements to maintain a minimum of 50 points per year; however, she failed to track it. Her mind and energy were focused on her severe medical and legal issues. She was faced with preparing for future medical procedures to begin repairing the damage to her face. She would like to continue to contribute to the Army Reserve program. She has a long history of providing quality and meaningful duty and service to her soldiers. She has come a long way both physically and emotionally. She has had several surgical procedures to slowly but surely heal her wounds. She has put this horrible experience behind her and is ready to move on to new challenges. She wants to commit her energy and experience to the Army Reserve.

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 an active status for non-participation reasons 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. Paragraph 6-4 of Army Regulation 140-10 pertains to transfer from the Retired Reserve. The criteria for transfer from the Retired Reserve to the Ready Reserve is based on the soldiers status: (a) transfer is not authorized for soldiers receiving retired pay unless the Secretary of the Army makes a special finding that their services are indispensable; (b) a soldier who is not receiving retired pay and otherwise qualified may be transferred to the IRR, or to an appropriate TPU or Individual Mobilization Augmentation (IMA) position vacancy. The transfer must be voluntary based on the soldier's request; and (c) all Retired Reserve members who were removed from active status by board action or operation of law are ineligible for transfer to the Ready Reserve.




18. Paragraph 7-3.1 of the regulation states that an enlisted solder who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status. Enlisted soldiers who failed to attain 50 points by the anniversary of their retirement year ending (RYE) date, will be removed from an active status.

19. Paragraph 7-12, of the regulation states that there are exceptions to specific reasons for removal from an active status. Failure to earn the required 50 retirement points may be authorized by the area commander (for soldiers assigned to a TPU) or by the Commander, AR-PERSCOM. USAR soldiers must request a waiver and submit documentation to show that nonparticipation was
due to circumstances beyond their control. Such circumstances are defined as those of a personal or temporary nature such as illness or civilian employment. A waiver of nonparticipation may be granted only on a one-time basis for failure to earn the required 50 points during a retirement year.

DISCUSSION AND CONCLUSIONS :

1. The evidence of record shows that as a member of the IRR, who had completed 21 years of qualifying service for retired pay, she was required to earn a minimum of 50 points in each subsequent RYE; however, she failed to earn 50 retirement points during her last 3 years. She was transferred to the Retired Reserve effective 19 May 2003, due to non-participation.

2. The advisory opinion stated that as a senior NCO, CSM, the applicant was aware of her requirements and responsibilities to maintain the minimum 50-point requirement in accordance with regulation. Upon her transfer to the IRR in April 2000, she failed to maintain the minimum 50 points each year for retirement. The applicant was afforded the opportunity to enroll in correspondence studies to earn retirement points but failed to do. She was transferred to the Retired Reserve for failure to maintain the required 50-points.

3. There is no evidence in the applicant’s record to show that she requested a one-time waiver of her removal based on her circumstances at the time.

BOARD VOTE:

___jl___ ___rw___ ___ao___ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

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BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the advisory opinion from the Personnel Actions and Services Directorate, Army Human Resources Command- St. Louis, and the applicant's failure to request a one-time waiver of the 50-point participation requirement, she appears eligible for return to the Ready Reserve under the provisions of AR 140-10 and it would now be in the interest of justice to transfer her from the Retired Reserve to the Ready Reserve provided she is otherwise qualified.




                  ___Joann Langston___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089482
SUFFIX
RECON
DATE BOARDED	20040122
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20030519
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	338
2.
3.
4.
5.
6.