MEMORANDUM OF CONSIDERATION


            IN THE CASE OF:



            BOARD DATE:          23 October 2003
            DOCKET NUMBER:  AR2003090190

      I certify that hereinafter is recorded the record of consideration 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:

|     |Ms. Joann H. Langston               |    |Chairperson         |
|     |Ms. Margaret K. Patterson           |    |Member              |
|     |Mr. Arthur A. Omartian              |    |Member              |

      The Board, established pursuant to authority contained in 10 U.S.C.
1552, convened at the call of the Chairperson on the above date.  In
accordance with Army Regulation 15-185, the application and the available
military records pertinent to the corrective action requested were reviewed
to determine whether to authorize a formal hearing, recommend that the
records be corrected without a formal hearing, or to deny the application
without a formal hearing if it is determined that insufficient relevant
evidence has been presented to demonstrate the existence of probable
material error or injustice.

      The applicant requests correction of military records as stated in
the application to the Board and as restated herein.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military
                records
      Exhibit B - Military Personnel Records (including
                  advisory opinion, if any)
APPLICANT REQUESTS:  That his records be corrected to show that he was
given the sanctuary afforded to soldiers with at least 18 but less than 20
years of active service.  As a result of that sanctuary, he requests that
his records be further corrected to show that he was retained on active
duty for the 6 months he needed to achieve retirement eligibility for years
of service.  He asks that, based on these two corrections, his records also
be corrected to show that he was placed on the Retired List for years of
service on the date he would have reached 20 years of active service.

APPLICANT STATES:  He was transferred to the Temporary Disability Retired
List (TDRL) due to bipolar disorder.  During a periodic evaluation while on
the TDRL, it was determined that since he was able to hold a job he did not
meet the criteria for permanent retirement for physical disability (rated
30 percent disabled or greater).  Unfortunately, while his mental illness
is not severe enough to warrant his permanent retirement, it precludes him
from reentering the service to complete his 20 years of active service and,
therefore, retire for years of service.

The applicant contends that Title 10, US Code, Section 12646, and Army
Regulation 601-280, paragraphs 1.6 and 3.16, require that soldiers with at
least 18 years of service be given sanctuary from removal regulations to
enable them to reach retirement eligibility for years of service.

In support of his request, the applicant submits a memorandum from the
current Commanding General (CG) of Training and Doctrine Command.  The CG
stated that he has known the applicant for 24 years and is familiar with
his transfer to the TDRL and his subsequent discharge with severance pay
due to physical disability.  The CG stated that the Army needs to do the
“right thing” for the applicant.  The CG defines the right thing as either
allowing him to return to active duty to complete his 20 years of active
service, or to retire him with 19 ½ years of active service.  The CG
continues that he used the term “right thing” because he does not believe
the applicant was given any options.  The CG adds that the Army’s policies
should be reviewed to determine whether they are flawed in regards to
soldiers with over 18 years of active service who are transferred to the
TDRL and who are later discharged without the option of returning to active
duty.  The CG continues that in his career, he has never known a soldier
with over 18 years of active duty who has not been retained on active duty
to reach retirement eligibility.  The CG believes the applicant is a
similar case and the Army should act to support him.







EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned and entered on active duty on 6 June 1979.  He was
awarded the Specialty Skill Identifier of Field Artillery Officer and was
promoted to lieutenant colonel.

The applicant’s performance records show that he was rated above center of
mass by his senior raters on the vast majority of his officer evaluation
reports (OER’s).  He was rated as exceeding standards on the majority of
the service schools he attended.

On 17 May 1998, the applicant was found guilty by a General Court-Martial
of: disobeying a superior commissioned officer; two specifications of
violating a lawful general regulation; four specifications of making false
official statements; wrongful disposition of Government property;
committing sodomy; and conduct unbecoming an officer and a gentleman.  The
applicant was sentenced to a forfeiture of $2,000.00 a month for four
months and four months confinement.  The court-martial order was reviewed
by the appropriate authorities, determined to be legally sufficient, and
the sentence was executed.

On 14 August 1998, while confined at the Disciplinary Barracks at Fort
Leavenworth, Kansas, the applicant was the subject of a Medical Evaluation
Board (MEB).  In the MEB history of the applicant’s illness, it was stated
that he attempted suicide on 5 May 1997.  The MEB determined that he
suffered from bipolar disorder, severe with psychotic features; alcohol
abuse, dependent when hypomaniac or manic; obsessive compulsive and
narcissistic personality traits; idiopathic hypertrophic cardiomyopathy
(nonimparing); marital, occupational and legal problems; and global
assessment of mental functioning.  The MEB recommended that the applicant
be referred to a Physical Evaluation Board (PEB).  The applicant concurred
with the MEB’s findings and recommendation, and stated that he would like
to continue on active duty (COAD).

On 28 September 1998, an informal PEB convened and determined that the
applicant was physically unfit due to bipolar disorder with psychotic
features.  The PEB rated that condition 50 percent disabling, and
recommended that the applicant be transferred to the TDRL because his
condition had not stabilized sufficiently to rate permanently.  The PEB
determined that the other conditions noted on the applicant’s MEB were
either not ratable or not unfitting.  The applicant concurred with those
findings and that recommendation and waived a formal hearing.





Accordingly, on 1 December 1998, the applicant was honorably discharged and
placed on the TDRL.  He had 19 years, 5 months and 26 days of active duty.

On 30 May 2000, the applicant was given a TDRL MEB/PEB evaluation, which
determined he should be retained on the TDRL.

On 19 July 2001, the applicant was given a second TDRL MEB/PEB evaluation,
which determined he should be retained on the TDRL.

On 16 September 2002, the applicant was given a third TDRL MEB/PEB
evaluation, which determined that his bipolar disorder was stable on
medication and he was then employable.  The PEB rated that condition as
being a mild social and industrial impairment and recommended that he be
discharged due to physical disability, rated 10 percent disabled.  The
applicant did not concur with those findings and recommendation and
demanded a formal hearing.

The applicant then submitted a letter from the Chief of Psychiatry, US Army
Medical Department Activity, Fort Hood, Texas.  In that statement, the
psychiatrist stated that the applicant was not completely forthright when
he was examined on his last MEB.  The applicant had reported during that
examination that while his symptoms were still present, they were mild and
largely controlled by medication.  However, the reality was that that he
was withholding information about his condition due to heightened fears of
how honest answers could adversely effect the possibility of his gaining
visitation rights with his children.  The applicant was actually not doing
well at all.  His former employer verified that the applicant did not quit
his job, but was fired because he repeatedly had episodes of manic behavior
that he could not control.  His illness prevented him from working with the
other employees and he had to be let go.  The psychiatrist concluded that
the applicant was still suffering from significant symptoms of bipolar
disorder that caused him marked difficulty in maintaining a regular and
predictable work and home life.

On 29 October 2002, a formal PEB convened with the applicant and counsel
present (personal appearance hearing).  The formal PEB determined that the
applicant was physically unfit due to bipolar disorder which required
medication, rated as a mild social and industrial impairment.

The applicant requested reconsideration of the findings and recommendation.
 The formal PEB denied his request on 12 November 2002, stating that he had
not submitted any new objective medical or professional





information which would change the board’s decision, and all factors he
brought up in his appeal had already been taken into consideration by the
PEB.

The applicant then appealed the formal PEB’s findings and recommendation to
the PDA.  The PDA denied the applicant’s appeal on 21 November 2002,
stating that the PEB’s findings and recommendations were supported by
substantial evidence.

Army Regulation 635-40, paragraph 3-10, states that Headquarters,
Department of the Army (HQDA) may defer the disposition of a soldier who,
although unfit because of physical disability, can still serve effectively
with proper assignment limitations.  The soldier must consent to being
deferred.

A soldier COAD must be unfit because of physical disability.  The physical
disability must be a basically stable condition or one for which accepted
medical principles show slow progression.  The soldier must be able to
maintain himself or herself in a military environment without jeopardizing
individual health or the health of others.  The soldier must not require an
excessive amount of medical care.

A soldier who is unfit because of physical disability will not be COAD
solely to increase benefits. He or she will not be COAD unless his or her
retention is justified as being of value to the Army.

Title 10, US Code, Section 12646, states that if on the date prescribed for
the discharge or transfer from an active status of a reserve commissioned
officer, he is entitled to be credited with at least 19, but less than 20,
years of service computed under section 12732 of this title, he may not be
discharged or transferred from an active status under chapter 573, 1407, or
1409 of this title or chapter 21 of title 14, without his consent before
the earlier of the following dates:

      (1)  the date on which he is entitled to be credited with 20 years of
service computed under section 12732 of this title; or

      (2)  the second anniversary of the date on which he would otherwise
be discharged or transferred from an active status.

Army Regulation 601-280, paragraph 1.6, states that enlisted soldiers whose
terms of enlistment expire and who have 18 years of qualifying service for
retirement, on the date of their discharge, shall be retained on active
duty in accordance with section 1176, Title 10, United States Code.  For
officers, some



Reserve officers and warrant officers of the Army have a statutory
entitlement to reenlist in their former enlisted grade.  The entitlement
period starts on the day after discharge or release from active duty
(REFRAD) as an officer and expires six months after that date.  This
entitlement only applies to soldiers who are currently serving on active
duty as Reserve commissioned or warrant officers of the Army if they are
former enlisted soldiers of the Regular Army (RA) and were discharged as RA
enlisted soldiers to immediately accept commissions or temporary
appointments as active duty Reserve commissioned or warrant officers of the
Army (no break in service permitted between RA enlisted and Reserve active
duty officer or warrant officer status).

This regulation does not contain a paragraph 3.16, as referenced by the
applicant.

DISCUSSION:  Considering all the evidence, allegations, and information
presented by the applicant, together with the evidence of record,
applicable law and regulations, and advisory opinion(s), it is concluded:

1.  Neither the statutory nor the regulatory cites made by the applicant
are applicable in his case.  He was a RA officer who was discharged due to
physical unfitness.  There is no statutory or regulatory prohibition on
discharging an officer with over 19 years of service for physical
unfitness.

2.  The Army must be comprised of physically fit personnel whom are capable
of deploying world-wide in response to war or national emergency.  The
retention of soldiers on active duty who are not deployable, and who are
not expected to become deployable, due to physical unfitness is contrary to
the Army’s stated purpose.  Sanctuary is afforded to soldiers who are fully
deployable, but are subject to removal for reasons unrelated to their
ability to perform their duties.  As such, the Army’s rationale for
exempting soldiers from a 18 year “lock in” is understandable.

3.  It is noted that while the applicant requested COAD when his initial
MEB was dictated, he did not contest his initial PEB’s recommendation to
separate him from active duty and place him on the TDRL.  It would appear
reasonable that the applicant would have contested his PEB’s recommendation
if it was his desire to remain on active duty.

4.  It is also noted that when the applicant appealed the PEB which
determined that his disability was stable enough to rate at 10 percent, he
stated that he was not honest with the physician conducting his MEB.  In
his appeal he stated that his bipolar disorder was far worse than what he
purported it to be.  This claim,


along with the documents he submits to the Board, were considered by the
formal PEB which considered his appeal.  The formal PEB had all the
evidence before it to consider, and had the opportunity to ask the
applicant and his counsel questions concerning the evidence (the applicant
had personal appearance with counsel).  Since the applicant admitted that
he was being untruthful, ascertaining what was the truth would certainly
have been a prime objective of the formal PEB.  If the truth was that the
applicant’s level of impairment was significant, was it due to
noncompliance with his medications?  It must be presumed that the formal
PEB was in a better position to determine the level of the applicant’s
disability, as controlled by medications, than this Board at this late
date.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant
evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

__jhl____  __mkp__  ___aao __  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



                                       Carl W. S. Chun
                             Director, Army Board for Correction
                               of Military Records



                                    INDEX

|CASE ID                 |AR2003090190                           |
|SUFFIX                  |                                       |
|RECON                   |YYYYMMDD                               |
|DATE BOARDED            |20031023                               |
|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.       |                                       |
|2.                      |                                       |
|3.                      |                                       |
|4.                      |                                       |
|5.                      |                                       |
|6.                      |                                       |