RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        07 JULY 2005
      DOCKET NUMBER:  AR20040007012


      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. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Ms. Carol Kornhoff                |     |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.  The applicant requests that his records be corrected to reflect that he
was authorized “a 15-year retirement certificate and ID card for faithful
service to the United States Army.”

2.  The applicant states, in effect, that he separated from the active Army
in 1997 and joined the Reserve Components to finish his time and “continue
working toward [his] 20 years for retirement.”  He states that at the time
of his 1997 separation he could no longer do physical training “four or
five days a week anymore” but never “quit a run with [his] guys” until he
received his separation orders.

3.  He notes that during the two years following his separation from active
duty he was unable to attend regular drills because of knee surgeries and
subsequent treatments for his neck, but states that he did work as a
Department of the Army civilian during those years and “never complained
about [his] injuries.”

4.  The applicant states that one morning in late 2003, while working as a
military technician performing administrative support for the Reserves, he
was unable to get out of bed as the “left side of [his] body was completely
numb with no control of [his] arm and leg movement.”  He states that he
went to his primary care physician who referred him to a local
neurosurgeon.  He states that after the neurosurgeon reviewed his file he
was told that he “ran the chance of being partially paralyzed if [he] did
not have a surgery to relieve the pressure on [his] spinal cord and
nerves.”  He states he was “torn between losing [his] reserve status, [his]
job, and the ability to take care of [his] family or not being able to get
around on [his] own.”

5.  The applicant states that in the coming weeks “as the war was
progressing” he was told that he would be “activated to go to the desert to
do [his] part.”  When asked if there was anything that would prohibit him
from deploying he told his superiors about his temporary profile and
impending surgery.

6.  The applicant indicated that the “most painful part of this whole mess”
was realizing that injured Soldiers are “systematically for the most part
thrown to the wayside as they are of no use anymore.”

7.  The applicant provides documents associated with his neck and bilateral
upper extremity pain, medical statements documenting his surgery in
February 2004, his May 2004 permanent physical profile, his July 2004
separation orders, a Chronological Statement of Retirement Points, and
evidence of a January 2004 Department of Veterans Affairs rating decision.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant served on
active duty between June 1983 and November 1997.  He was voluntarily
released from active duty, in pay grade E-5, under the provisions of Army
Regulation 635-200, paragraph 5-17 for the purpose of attending school.

2.  Army Regulation 635-200, paragraph 5-17, in effect at the time,
provided for the voluntary separation of Soldiers from active duty for the
convenience of the Government, up to 90 days before their scheduled
separation date in order to attend a specific term at college, university,
vocation school, or technical school.

3.  A June 1997 separation physical examination noted that the applicant
was under the care of the unit medical officer “for lower back muscular
strain” at the time of the physical examination.  However, the examining
physician found the applicant medically qualified for separation with no
limiting physical profile.  In a report of medical assessment, the
applicant indicated that he had not suffered from any injury or illness
while on active duty for which he did not seek medical care, that he did
not have any conditions which currently limited his ability to work in his
primary specialty or required geographic or assignment limitation, and that
at the time he had no questions or concerns about his health.

4.  According to documents contained in the applicant’s file he enlisted in
the Army National Guard shortly after his released from active duty in
November 1997 and was subsequently honorably discharged from the Kansas
Army National Guard in October 1999 as an unsatisfactory participant.  His
Chronological Statement of Retirement Points indicates that the applicant
did not have a qualifying year of service for retirement purposes while a
member of the Army National Guard.

5.  However, medical documents provided by the applicant do indicate that
in late 1998 he underwent surgery on his right knee without complications.
In June 1999 was seen by medical officials in Wichita, Kansas for “pain
between shoulder blades and numbness in both arms and hands.”  The Magnetic
Resonance Imaging (MRI) impression showed degenerative disk disease
throughout the cervical spine, disk space herniation at the C5-6 level on
his left, and herniated disk at C6-7 level central with mild eccentricity
to the right.


6.  On 15 April 2000 the applicant enlisted in the Army Reserve for a
period of 6 years.  Performance evaluation reports completed for rating
periods in December 2000 and December 2001 indicate that the applicant was
a successful Soldier who passed the Army’s Physical Fitness Test in
February 2000 and in March 2001.  He was promoted to pay grade E-6 in
December 2000.

7.  In October 2003 the applicant was seen by medical personnel with a
complaint of pain and stiffness in the neck, paresthesis in fingers, pain
shooting down both arms, and right knee pain.  The MRI of his spine now
showed an impression of degenerative disk disease throughout the cervical
spine, a herniated disk at the C5-6 level on the patient’s left, and
diffuse disk space bulging at the C6-7 level.  The 1999 MRI had shown
degenerative disk disease throughout the cervical spine, disk space
herniation at the C5-6 level on his left, and herniated disk at C6-7 level
central with mild eccentricity to the right.

8.  The October 2003 MRI of the applicant’s right knee showed evidence of
prior meniscal repair in the posterior horn of the medial meniscus, the
medical meniscus itself does not have its normal configuration, no free
fragments of the meniscus are identified in the joint space, and there was
also evidence for a tear of the posterior horn of the lateral meniscus.

9.  In November 2003 the applicant was seen for a neurosurgical
consultation which recommended “surgical intervention” given the severity
and duration of the applicant’s symptoms.

10.  In February 2004 the applicant underwent cervical decompressive
laminectomy.  The surgical summary noted no complications.

11.  In March 2004 the applicant signed a “Functional Capacity Certificate”
indicating that his knee and neck condition prevented him from
participating in many of the requirements imposed on Soldiers, including
deployment, physical fitness, and the wearing of combat gear.  He was
issued a permanent physical profile in May 2004 for neck and arm pain due
to degenerative disk disease C4-7 status post laminectomy February 2004,
knee pain status post surgery January 2003, and bipolar affective disorder.


12.  For informational purposes, the vertebral (spinal) column, which
consists of bones (vertebrae) that are numbered in sequence from the 7
cervical vertebrae (C1-C7) in the neck region down and are separated by
plates of fibrocartilage called intervertebral disks.  In the lower back
area, beneath the 12 thoracic (T1-T12) vertebrae, there are 5 lumbar (L1-
L5) vertebrae and 5 sacral (S1-S5) vertebrae.  Low back problems normally
are located in the L5-S1 area.
13.  On 30 June 2004 the applicant was discharged from the Army Reserve as
a result of being medically disqualified.  At the time of his discharge,
his Chronological Statement of Retirement Points indicated that he had 18
years, 6 months, and 20 days of qualifying service for retired pay at age
60.  However, he had only 3 years, 11 months, and 29 days of qualifying
service as a member of the Reserve Components.

14.  Army Regulation 635-40 states, in effect, that Reserve Component
soldiers will be separated from the Reserve when they no longer meet
medical retention standards.  Such separation will be without benefits if
the unfitting condition was not incurred or aggravated as the proximate
result of performing annual training, active duty special work, active duty
for training, or inactive duty training.

15.  The applicant’s Chronological Statement of Retirement Points notes he
had a qualifying year for retirement purposes for his retirement year
ending in 2002, 2003, and 2004.

16.  Title 10, United States Code, Section 12731b states that in the case
of a member of the Selected Reserve of a Reserve Component who no longer
meets the qualifications for membership in the Selected Reserve solely
because the member is unfit because of physical disability, the Secretary
concerned may, for purposes of section 12731 of this title, determine to
treat the member as having met the service requirements of subsection
(a)(2) of that section and provide the member with the notification
required by subsection (d) of that section if the members has completed at
least 15, and less than 20, years of service computed under section 12732
of this title.

17.  Title 10, United States Code, Section 12731 states that a person is
entitled, upon application, to retired pay if the person:

      a.  (1) is at least 60 years of age;


      b.  (2) has performed at least 20 years of service computed under
section 12732 [this is the portion that the Secretary concern may amend
under section 12731b];


      c.  (3) has performed the last six years of qualifying service while a
member of any category named in section 12732(a)(1) of this title, but not
while a member of a regular component; and


      d.  (4) is not entitled, under any other provision of law, to retired
pay from an armed force or retainer pay.


18.  A statement from the United States Army Human Resources Command-St.
Louis confirmed that the applicant does not have the last 6 qualifying
years in the Reserve Component and that he was not eligible for the “early”
retirement provisions.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant may have had more than 18 years of qualifying
service for retirement purposes, unfortunately he did not have the required
6 years of qualifying service in the Reserve Component, and was, therefore,
not eligible for a retirement under the provisions of Section 12731b of
Title 10, United States Code.

2.  The evidence available to the Board indicates that the applicant
voluntarily left active duty in November 1997 after 14 years of service to
attend school.  There is no evidence, as he indicated, that he was having
any medical problems at the time of his separation, which would have
precluded his continued service on active duty.  His separation physical
examination noted a physical profile of
1-1-1-1-1-1.

3.  The applicant then argues that he was precluded from actively
participating in the United States Army Reserve/Army National Guard for the
next 2 years because of his medical conditions.  However, the medical
documents he submits indicate that he did not have knee surgery until more
than a year after his release from active duty and did not have an MRI on
his back until June 1999, nearly 20 months after his separation.

4.  Performance evaluation reports indicate that the applicant was a
successful Soldier after his return to military service in 2000, including
passing at least two Army physical fitness tests, and that he did not
encounter any medical problems until, as he admits, he became aware that
his unit was going to be activated in support of ongoing operations in the
Persian Gulf region.

5.  There is no evidence of any error or injustice in the applicant’s
honorable discharged from the United States Army Reserve in July 2004 as a
result of his medical disqualification.  While it is unfortunate that the
applicant was unable to fulfill the service requirements to qualify for
retired pay, he has not presented any compelling evidence which would
warrant granting him sufficient service to qualify for retirement under the
provisions of Title 10, United States Code, Section 12731b as an exception
to policy or law.

6.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM __  ___EA __  ___CK __  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.





                                  ______Melvin Meyer_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007012                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050707                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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