RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 AUGUST 2005
      DOCKET NUMBER:  AR20040009719


      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:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Ronald Blakely                |     |Member               |
|     |Ms. Linda Barker                  |     |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 his records be corrected to show
that he was retired under the provisions of Title 10, United States Code,
Section 12731b (15 year retirement law) so as to be eligible for retired
pay and benefits at       age 60.

2.  The applicant states that his commander inadvertently recommended
disapproval on his first request to the Medical Board to transfer to the
Retired Reserve with eligibility for retired pay at age 60.  He has since
obtained a corrected request wherein his commander recommended approval.
He was discharged for a medical condition and received no disability rating
from the Army or the Department of Veterans Affairs.  He has over 15, but
less than       20 years of Reserve service.  His unit was activated on 12
January 2003 and he volunteered to go to Iraq.  While processing at Fort
Bliss, Texas, he informed a doctor that he had an artificial knee and knee
joint; however, he was cleared to deploy to Iraq.  When he returned from
Iraq, he was again medically evaluated, and a Physical Evaluation Board
(PEB) met and found him unfit for duty.  He has served his country
honorably for almost 18 years.

3.  The applicant provides a copy of his discharge order, a copy of his
         DD Form 214 (Certificate of Release or Discharge from Active
Duty), a copy of his 16 September 2004 request for early qualification for
retired pay, a copy of a summary of his retirement points, a copy of a 4
July 2004 PEB proceedings, a copy of an 11 December 2003 Army Reserve
Command memorandum pertaining to early qualification for Reserve
retirement, a copy of Title 10, United States Code, Section 12731b, a copy
of a page from a document with a portion pertaining to early retirement
highlighted, a copy of a 13 September 2004 memorandum to the applicant to
report for disability separation, and a copy of a Medical Evaluation Board
(MEB) narrative.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army Reserve Delayed Entry Program (DEP)
for 8 years on 20 March 1987.  He was discharged from the DEP upon his
enlistment in the Regular Army for 3 years on 21 July 1987.  The applicant
was released from active duty on his ETS (expiration of term of service)
with an honorable characterization of service on 20 July 1990 and
transferred to a Reserve unit in El Paso, Texas.

2.  The applicant enlisted in the Army Reserve for 6 years on 18 March 1995
and reenlisted for another 6 years on 2 December 2000.
3.  An 8 June 2004 Medical Evaluation Board narrative indicates that the
applicant had undergone left total knee arthroplasty in December 2001 for
severe left knee degenerative joint disease.  The narrative indicates that
the applicant had a history of seven prior surgeries on his left knee.  It
indicates that he was activated in January 2003, but since that time and
because of his job requirements he has been required to put an excessive
amount of stress on his left knee.  The examining physician diagnosed his
condition as degenerative joint disease, left knee and status post left
total knee arthroplasty.  He stated that he was unable to satisfactorily
perform his required duties, and did not meet the medical retention
standards.  He recommended that the applicant be referred to a PEB.

4.  On 6 July 2004 a PEB determined that the applicant was unfit because of
his knee condition.  The PEB stated that his condition was found to be
neither service-incurred nor permanently aggravated by subsequent military
service, and consequently he was ineligible for disability compensation,
and therefore separated without disability benefits.  The PEB did indicate
that in accordance with the provisions of Title 10, United States Code,
Section 12731b, he might be eligible to apply for the Army Reserve early
qualification for retired pay program in lieu of separation for disability,
and that he was strongly encouraged to consider requesting termination of
disability processing so he could submit an application through Reserve
component channels.

5.  On 16 September 2004 the applicant requested that he be issued a
memorandum of early qualification for retired pay at age 60 (15 year
memorandum).  On that same date, his commanding officer recommended
approval.

6.  On 17 September 2004 Headquarters, United States Army Air Defense
Artillery Center and Fort Bliss, published Orders 261-0009, assigning the
applicant to the Army Transition Branch at Fort Bliss for transition
processing and discharge from the Army.  On 17 September 2004 the applicant
was discharged from the Army because of his physical disability.  His DD
Form 214 shows that he was ordered to active duty in support of Operation
Enduring Freedom, and that he served on active duty for 8 months and 9
days.  He had almost 4 years of prior active service, and over 12 years of
prior inactive service.

7.  A summary of the applicant’s retirement points shows that he had 16
years of qualifying service for retired pay at age 60.

8.  Army Reserve Command memorandum, dated 11 December 2003, provides
instructions to subordinate commanders for issuance of a 15-year
memorandum. It states that eligible Soldiers must request the memorandum
through command channels to the Human Resource Command at St. Louis, and
certain information, to include the results of the PEB, and a copy of the
order reassigning the Soldier to the Retired Reserve, with the instructions
therein that the Soldier is authorized early retirement under Title 10,
United States Code, Section 12731b.  It stated that upon review of the
necessary documentation, the Human Resources Command will issue to the
Soldier a “Notification of Eligibility for Retired Pay at Age 60 (15-year
Memorandum).

9.  Title 10, United States Code, Section 12731b, states in effect that a
member of the Selected Reserve who no longer meets the qualifications for
membership solely because he is unfit because of physical disability, may
be treated as having met the service requirements and be provided with the
notification required if he has completed and least 15 and less than 20
years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was found unfit for retention in the Army by a PEB and
consequently discharged without disability benefits because of his EPTS
(existed prior to service) condition.  He had over 15 years of qualifying
service, and was eligible to transfer to the Retired Reserve with
entitlement to retired pay at        age 60.

2.  The applicant’s request for the 15-year retirement was submitted on
        16 September 2004.  Consequently, it is obvious that his request
could not be acted upon prior to his discharge on the following day.

3.  The PEB informed the applicant in its July 2004 proceedings of his
eligibility to apply for the early qualification for the retired pay
program.  It would appear reasonable to assume that the applicant did
apply, and as he states, his commander initially and inadvertently
recommended disapproval.  There appears to be no good reason why his
commanding officer would intentionally recommend disapproval on a request
of this nature.  Therefore, the applicant’s contention that his commander
unintentionally and inadvertently recommended disapproval of his request,
and by extension, caused him to be discharged from the Army, despite the
fact that he was eligible for the 15-year retirement program, is accepted.


4.  An injustice had been done to the applicant.  Therefore, as a matter of
equity and in all fairness, the applicant’s records should be corrected as
he has requested.

5.  Consequently, Orders 261-0009, dated 17 September 2004, issued by
Headquarters, United States Army Air Defense Artillery Center and Fort
Bliss, assigning the applicant to the Army Transition Branch at Fort Bliss,
should be revoked.  It is null and void and of no force or effect.  By the
same token, the applicant’s DD Form 214 is also null and void and of no
force or effect, and should be invalidated.

6.  The applicant should be transferred to the Retired Reserve effective on
        17 September 2004 with authorization for early retirement under
Title 10, United States Code, Section 12731b.  The applicant should be
issued a notification of eligibility for retired pay at age 60 (15-year
memorandum).

BOARD VOTE:

__MP ___  ___RB __  ___LB __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
revoking the above-mentioned Fort Bliss discharge order, and invalidating
the    17 September 2004 DD Form 214; and by transferring the individual
concerned  to the Retired Reserve effective on 17 September 2004 with
authorization for early retirement under Title 10 Untied States Code,
Section 12731b, and issuing him a notification of eligibility for retired
pay at age 60 (15-year memorandum).





                                  ____Margaret Patterson______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009719                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050825                                |
|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.       |136.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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