RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 16 NOVEMBER 2004
DOCKET NUMBER: AR2004103107
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. Kenneth H. Aucock | |Analyst |
The following members, a quorum, were present:
| |Mr. Melvin Meyer | |Chairperson |
| |Mr. Eloise Prendergast | |Member |
| |Mr. Robert Rogers | |Member |
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. In effect, the applicant requests that he be reinstated in the active
Army and removed from the retired list.
2. The applicant states that a Physical Evaluation Board (PEB) found him
physically unfit for duty and recommended that he be separated with
severance pay with a 20 percent disability rating. While pending
separation, he was informed that he was qualified for retirement under the
temporary early retirement authority (TERA), a better option than being
separated with severance pay after 16 plus years of active federal service.
He is currently a medical evaluation helicopter pilot at Fort Drum, New
York [after having been recalled to active duty from his retired status].
3. The applicant provides copies of PEB proceedings, a copy of orders
transferring him to the Retired Reserve, and statements recommending that
he be reinstated in the Army.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003088362, on 3 February 2004.
2. On 16 September 1998 a PEB determined that he was physically unfit and
recommended that he be separated with severance pay with a 20 percent
disability rating. The applicant did not concur and requested a formal
hearing.
3. On 20 October 1998 a formal PEB made the same determination and
recommendation.
4. Orders were published on 5 February 1999 separating him from active
duty and placing him on the retired list on 1 May 1999. The orders show
that his retirement was a voluntary non-disability retirement.
5. The 3 February 2004 ABCMR record of proceedings shows that orders were
issued recalling him to active duty from the retired list for 3 years with
a reporting date of 27 July 2003.
6. The applicant's battalion commander and detachment commander
recommended that he be reinstated in the Army and receive retroactive
consideration for promotion to chief warrant officer three. Two chief
warrant officers, both standardization instructor pilots at Fort Drum,
recommend his reinstatement.
7. Section 1293, Title 10 U.S.C. states that the Secretary concerned may,
upon the warrant officer’s request, retire a warrant officer of any armed
force under his jurisdiction who has at least 20 years of active service
that could be credited to him.
8. Section 4403 of the National Defense Authorization Act for FY 93,
states in pertinent part that the Secretary of the Army may apply the
provisions of Section 1293, Title 10 U.S.C. to a warrant officer with at
least 15 but less than 20 years of service by substituting "at least 15
years" for "at least 20 years."
DISCUSSION AND CONCLUSIONS:
1. The applicant was determined to be physically unfit for service as
indicated by the copies of the PEB proceedings he submits with his request.
Nonetheless, as he states, instead of being separated with severance pay,
he requested retirement under TERA, apparently bringing to an end his
processing under the physical disability system. He was retired at his own
request.
2. Noted are the recommendations that the applicant has submitted with his
request, attesting to his outstanding performance of duty, his dedication,
and his excellent characteristics. These comments, while commendable, do
not suffice to warrant the relief requested.
3. There is no error or injustice in this case. The fact that he was
recalled from the retired list and is now physically fit to perform his
duties, is not good reason to grant his request. The applicant has
submitted neither probative evidence nor a convincing argument in support
of his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___MM__ ___EP___ ___RR__ 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 to amend the decision of
the ABCMR set forth in Docket Number AR2003088362, dated 3 February 2004.
______Melvin Meyer_________
CHAIRPERSON
INDEX
|CASE ID |AR2004103107 |
|SUFFIX | |
|RECON |YYYYMMDD |
|DATE BOARDED |20041116 |
|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. |110.00 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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