RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 November 2005
      DOCKET NUMBER:  AR20040009465


      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. Eric S. Moore                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 reinstatement to active duty to complete medical
treatment (surgery), and time to use his leave and permissive temporary
duty (TDY) for transition to retirement.

2.  The applicant states that he requested extension beyond the 90 day rule
for Soldiers at their retention control point (RCP) to complete medical
treatment and use of his transition leave.  On 28 September 2004, while at
the transition point during a phone conference with HRC (Human Resources
Command), St. Louis and the Washington State Adjutant General (TAG) the
applicant states that he was approved for retention.  Therefore, at their
direction the applicant did not process through the Transition Point.  On 6
October 2004 he received an e-mail from HRC St. Louis that the TAG had
reversed their decision and he was separated from the Army on 30 September
2004.

3.  The applicant continues by stating that he acted as directed in that
phone conference on 28 September 2004 fully believing that he had been
retained.  He states that he was living in government quarters and was
misled to a point that, on 6 September 2004, since he was no longer in the
military they could do no more for him and that this application was his
only recourse.  MILPER message 04-267 allowed for extension beyond the 90
day stop loss order, and he requested that the original decision given on
28 September 2004 be reinstated and his retirement orders be amended to
allow for the use of his transition leave and time to recover from his
surgery as directed by the medical treatment facility (MTF) Ft Leavenworth,
Kansas.  The applicant also stated that he has not been afforded adequate
time to complete the full retirement process, that he was release from the
MTF at Fort Lewis, Washington on 27 July 2004 to complete treatment at his
home station, that as of the date of his application he had not processed
at the transition point because of the directive given to him on
28 September 2004, that he had been approved for retention and that
amendment orders would be processed.

4.  The applicant provides copies of his retirement orders, a MTF referral
from Fort Leavenworth, Kansas, his retirement physical, his Department of
Veterans Affairs Disability Rating Packet, and a doctor's statement.






CONSIDERATION OF EVIDENCE:

1.  Records show the applicant was ordered to active duty as a member of
the Active Duty Guard/Reserve on 30 September 1983.  He retired on 30
September 2004 in the rank of sergeant first class/pay grade E-7 after the
completion of over 20 years of active federal service.

2.  The DD Form 4/1 (Enlistment/Reenlistment Document), dated 13 May 2004,
item 8 shows that the applicant understood that his reenlistment was for an
indefinite period of time.  He would be allowed to continue in an AGR
status until the Retention Control Point (RCP) for his current grade or
maximum age, whichever came first.

3.  Based on information from the applicant's Soldier Management System
(SMS) Report (a communication log) the following actions took place:

      a.  On 15 March 2002, orders were published extending the applicant
      until
30 September 2002 due to Stop Loss.

      b.  On 7 October 2002, the applicant was notified by e-mail that under
new stop loss policy he would have to retire on 1 August 2003.  Applicant
was sent an example of a retirement packet.

      c.  On 4 February 2004, the applicant was sent a Voluntary Retirement
Eligibility notification.

      d.  On 17 May 2004, the applicant was notified by e-mail that his ETS
was within 6 months, and he was sent a Voluntary Retirement Eligibility
notification by email.

      e.  On 20 May 2004, the Transition Point, Fort Lewis, Washington,
contacted H___, T______ at HRC, St. Louis inquiring about the applicant.
The Transition Point was told by H__ that he informed the applicant to do a
voluntary retirement because he could only be held 90 days past his
demobilization date.  The Transition Point representative asked why they
were informing a Soldier with medical issues to separate.  The Transition
Point was informed that there was no medical action pending and if that was
the situation then special action branch would need to issue specific
orders.  H__ informed the Transition Point that it would be in the best
interest of the Soldier to submit his Voluntary Retirement or he would
receive a regular separation.


      f.  There is no record of a MEB being scheduled, however, an entry on
the SMS shows that a memo dated 16 June 2004, was received canceling the
applicant's MEB.

4.  A DD Form 2697 (Report of Medical Assessment) dated 24 May 2004, shows
the entry in item 21 (Was Patient Referred for Further Evaluation) as "NO".

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status) dated
24 June 2004, shows in item 15 (Details of Accident or History of Disease)
that the applicant reported reinjuring his back on 9 April 2004 while he
was unloading ammunition.  He was seen for this on 10 April 2004.

6.  A 26 May 2004 entry in the applicant's SMS shows that a memo was
received from the 244th Aviation Brigade showing that the applicant's
release date from mobilization was amended from 6 May 2004 to 30 June 2004.
 Based on this information the applicant's discharge orders were amended to
read Report Date to the Transition Point as 28 September 2004 and Date of
Separation as           28 September 2004.

7.  HRC, Alexandria, Virginia, published Orders A-06-406370, dated 29 June
2004, which show that the applicant was assigned to the USAG Fort Lewis for
a period of 179 days to voluntarily participate in Reserve Component
medical holdover medical-retention processing program for completion of
medical care and treatment.

8.  HRC, Alexandria, Virginia, published Orders A-06-406370R, dated 30 June
2004, revoking Orders A-06-406370.

9.  On 12 August 2004, the applicant was referred to the Heartland Hand and
Spine Orthopedic Center for an evaluation.  There is no record as to the
outcome of that referral.

10.  HRC, St Louis, Missouri, published Orders C-09-491359, dated 9
September 2004, ordering the applicant's retirement on 30 September 2004.

11.  On 14 September 2004, the applicant submitted a letter to his
Congressman. The applicant referenced his service in Iraq from March 2003
to May 2004 and reported that he  injured a vertebra while unloading
ammunitions on 10 April 2004.  The letter also states that, during the
demobilization process and as a part of his medical processing, he was
transferred to the Medical Retention Program for treatment.  Immediately
upon his receiving orders for medical treatment HRC, St. Louis revoked his
orders stating that he was past his Retention Control Point and that he had
to retire within 90 days of demobilization. The applicant went on to say
that at the time he was writing his letter, he was scheduled to have spinal
fusion surgery to help correct the injury incurred in Iraq. He explained
that on    14 September 2004, he received retirement orders in the mail to
report to the separation point on 28 September 2004 the same day of his
scheduled surgery.  He was disqualified during his retirement physical with
a recommendation for continuation on active duty until treatment was
completed.  When he submitted for retirement he asked for additional time
to receive medical treatment and process for retirement.  He heard nothing
until he received retirement orders in the mail on 13 September 2004.  In
closing, he informed the Senator that he felt he had been abandoned by the
military and that he would like to be treated honorably by the system that
he had served.

12.  In a letter dated 15 September 2004, from the Heartland Hand & Spine
Orthopedic Center, the doctor stated the applicant had a test on 9
September 2004, lumbar fusion surgery was planned for 28 September 2004,
and the applicant's hospital stay would be 3-5 days.  Ultimately, there
would be a 6 month to a 1 year recovery time from such a significant
operation.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation), paragraph 3-6 states that providing definitive medical care
to active duty Soldiers requiring prolonged hospitalization who are
unlikely to return to active duty is not within the Department of the
Army's mission.

14.  MILPER Message Number 04-267 (Extension of ETS or Retirement upon
Return from Deployment due to Hardship) issued 24 September 2004 states:

      a.  Soldiers who are unable to complete all processing, to include
use of leave, within the 90 day period upon redeployment without incurring
a hardship may request an extension of their ETS through their local career
counselor.  Request must clearly state what hardship the Soldier will
incur.

      b.  Soldiers with approved retirements/separation may request a
change in their retirement/separation date through their chain of command
to HRC (AHRC-EPR-F).

15.  Army Regulation 601-280 prescribes criteria for the Army Retention
Program and sets forth policies, command responsibilities for immediate
reenlistment or extension of enlistment of Soldiers currently serving in
the Active Army.  Chapter 3 contains reenlistment eligibility criteria.
Paragraph 3-8f contains guidance on rank eligibility for reenlistment by
establishing RCP by grade.  The RCP for members holding the rank of SFC is
24 years.
16.  Army Regulation 635-40 provides that the MTF commander with the
primary care responsibility will evaluate those cases referred to him.  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) to
determine if they are able to perform the duties of their grade and
military specialty.  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.
 For example, a medically disqualified noncommissioned officer who receives
above average evaluation reports and passes Army Physical Fitness Test
would probably be found to be fit for duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was notified by Orders C-09-491359, dated 9 September
2004, that he would be retired on 30 September 2004.

2.  There is no evidence and the applicant has not provided any to show
that he requested for or was recommended to appear before a MEB.
Therefore, he was not eligible to be retained on active duty beyond his
RCP.

3.  There is no substantiating evidence that shows the applicant was
approved for extension on 28 September 2004 by the HRC, St. Louis.

4.  The Board acknowledges that the applicant later tried to get extended
on active duty to have the operation performed; however, the Army can not
retain all Soldiers on active duty until all their surgical or medical
problems are resolved to the maximum extent possible.  Soldiers requiring
prolonged hospitalization who are unlikely to return to active duty should
be processed for disability or retirement, after which the VA becomes the
agency designated to care for them.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sk ____  __jtm ___  __rld____  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.





                                  ____    Stanley Kelley________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009465                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051115                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR CHUN                                 |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]