RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050006158


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald w. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 show he was
given a medical retirement.

2.  The applicant states his Reserve command erred in not responding
appropriately to his requests for a fitness for duty examination.  His wife
also tried several times to get him a medical retirement.

3.  The applicant provides a note, with timelines, from his wife; a medical
examination dated 1 December 2001 with a 20 January 2002 letter from The
Federal Strategic Health Alliance (FEDS__HEAL); a 5 December 2000 letter
from the Office of the Secretary of Defense; a 31 January 2002 letter from
his civilian employer; a 17 September 2002 email; a copy of his military
identification card; a 22 April 2004 letter to his Congresswoman; two
undated letters to his Congressman; an undated letter to the "VA Hospital
and Administration"; and an 18 July 2003 Department of Veterans Affairs
(DVA) Rating Decision.

4.  The applicant also provides a 24 February 2004 letter from the Social
Security Administration; extracts from numerous civilian medical records;
his record of vaccinations; a 15 March 2004 letter from the State of
Wisconsin, Department of Health and Family Services with attached
disability report dated 18 December 2003; an 18 July 1997 letter from the
DVA; a 28 April 2003 letter from the DVA; his discharge orders; a
Chronological Statement of Retirement Points dated         26 October 2001;
and a Leave and Earnings Statement for period covered           1 November
2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 25 April 1953.  After having had prior
service in the U. S. Marine Corps and the U. S. Marine Corps Reserve, he
enlisted in the U. S Army Reserve (USAR) on 27 September 1984.  He was
promoted to Staff Sergeant, E-6 in military occupational specialty 91R
(Veterinary Food Inspection Specialist) on 11 December 1997.  He last
reenlisted in the USAR on 3 October 1998 for 3 years.

2.  The applicant served in Southwest Asia during the Persian Gulf War and
later participated in the DVA Persian Gulf Registry Program.  In an 18 July
1997 letter, the DVA informed the applicant the results of his Persian Gulf
War examination and laboratory testing revealed the following issues:  (1)
depression; (2) anxiety disorder; (3) post-traumatic stress syndrome
disorder (PTSD); and (4) irritable bowel syndrome.  The letter noted the
applicant's multiple complaints were significantly associated with a great
deal of anxiety and depression.  All of his laboratory testing and chest x-
rays were entirely normal.

3.  The applicant completed a retention physical examination in January
2002.  He was found to be fit for continued service.  The only diagnosis
listed in item
77 (Summary of defects and diagnoses) of his DD Form 2808 (Report of
Medical Examination) was fibromyalgia.

4.  The applicant's normal expiration term of service was 2 October 1991;
however, he was retained in service for an unknown reason until he was
honorably discharged on 10 September 2002.  The applicant provided a
    17 September 2002 email which indicated he had failed his most recent
Army Physical Fitness Test (APFT), making him ineligible for extension or
reenlistment. The email also indicated that a retirement point worksheet
dated 29 October 1999 showed he had 17 years, 11 months, and 7 days of
creditable service.  The Chronological Statement of Retirement Points dated
26 October 2001 provided by the applicant indicated he had completed 18
years, 11 months, and 7 days of qualifying service for retirement.

5.  A Statement of Retirement Points through the applicant's retirement
year ending (RYE) 10 September 2002 shows he completed 18 years, 11 months,
and 7 days of qualifying service for retirement.  It shows he earned 47
points     for RYEs 26 September 2001 and 26 September 1987 and 32 points
for RYE      10 September 2002.  During RYE 26 September 1994, he earned
134 retirement points.

6.  In a 28 April 2003 letter, the DVA thanked the applicant for
participating in the DVA Persian Gulf Registry Program.  The letter went on
to state he had been diagnosed with a number of symptoms including
fibromyalgia, PTSD, depression, swelling problems, dystonia and "former
heavy alcohol use, which most likely explains the majority of your
symptoms."  It was also noted, however, that some of the symptoms he
described were the same as those described by other veterans who served in
the Persian Gulf.

7.  In a DVA Rating Decision dated 18 July 2003, the applicant was granted
a combined 90 percent disability rating (PTSD and a major depressive
disorder,  70 percent; fibromyalgia to include headaches, 40 percent; and
irritable bowel syndrome, 30 percent).

8.  Army Regulation 140-111 (U. S. Army Reserve Reenlistment Program)
provides that a Soldier who has completed 18 or more years of qualifying
service for retired pay, but less than 20, and is ineligible to reenlist,
may request and will be extended to complete 20 years of qualifying service
for retired pay before reaching age 60.

9.  Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired
pay for Reserve component military service.  Under this law, a Reserve
Soldier must complete a minimum of 20 qualifying years of service to be
eligible for retired pay at age 60.  The term “good years” is an unofficial
term used to mean years in which 50 or more retirement points are earned
during each year and which count as qualifying years of service for
retirement benefits at age 60.

10.  Title 38, U. S. Code, sections 1110 and 1131, permits the DVA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.  The DVA, however, is not required by law to
determine medical unfitness for further military service.  The DVA, in
accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.

11.  Until certain provisions of the law were changed in fiscal year 2004,
a common misconception was that veterans could receive both a military
retirement for physical unfitness and a DVA disability pension.  Under the
law prior to 2004, a veteran could only be compensated once for a
disability.  If a veteran was receiving a DVA disability pension and the
Board corrected the records to show the veteran was retired for physical
unfitness, the veteran would have had to choose between the DVA pension and
military retirement.

12.  The Fiscal Year 2004 National Defense Authorization Act provided for
phased-in restoration of the retired pay deducted from the accounts of
military retirees because of their receipt of DVA compensation.  Concurrent
Retirement and Disability Payments (CRDP) applies to all retires with a DVA-
rated, service-connected disability of 50 percent or higher but does not
apply to disability retirees with less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his Reserve command erred in not
responding appropriately to his requests for a fitness for duty examination
has been carefully considered.  It is also acknowledged that the DVA
awarded him a 90 percent disability rating in July 2003.  However, the
available evidence shows he completed a physical examination in January
2002 and was found qualified for retention.  It is also noted that he
continued to earn retirement points through inactive duty training through
his final RYE 10 September 2002.

2.  The rating action by the DVA does not necessarily demonstrate an error
or injustice on the part of the Army.  The DVA, operating under its own
policies and regulations, assigns disability ratings as it sees fit.
Consequently, due to the two concepts involved (i.e., the more stringent
standard by which a Soldier is determined not to be medically fit for duty
versus the standard by which a civilian would be determined to be socially
or industrially impaired), an individual’s medical condition may be rated
as disabling by the DVA even though he was found medically qualified for
retention by the Army.  Therefore, there is insufficient evidence to show
the applicant was unfit for duty.

3.  Nevertheless, the applicant had been found medically qualified for
retention by the Army in January 2002.  Therefore, because he had completed
more than 18 years of qualifying service and even though he had failed his
APFT, he should have been given the option of extending his enlistment to
qualify for a Reserve retirement.

4.  The evidence of record shows the applicant had several RYEs where he
earned almost 50 retirement points.  He also had at least one RYE where he
earned considerably in excess of 50 retirement points.  It would be
equitable to redistribute sufficient excess retirement points to show he
completed two additional qualifying years, to show he was transferred to
the Retired Reserve on 10 September 2002, and to issue him a notification
of eligibility for retired pay at age 60.

5.  If the correction requested by the applicant were made, he would have
had to choose between receiving his military medical retired pay or his DVA
disability pension.  The above correction would be to the benefit of the
applicant as he will be able to retain both his military retired pay and
his DVA disability pension upon reaching age 60.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__bpi___  __dws___  __eem___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:

     a.  redistributing a sufficient number of his excess retirement points
to show he completed two additional qualifying years;

     b.  voiding his discharge of 10 September 2002 and showing he was
transferred to the Retired Reserve on that date; and

     c.  issuing to him a notification of eligibility for retired pay at
age 60.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
showing he was separated from the U. S. Army Reserve with a medical
retirement.




                                  __Bernard P. Ingold___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006158                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051216                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |108.00                                  |
|2.                      |135.02                                  |
|3.                      |135.03                                  |
|4.                      |136.04                                  |
|5.                      |                                        |
|6.                      |                                        |


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