RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 July 2006
      DOCKET NUMBER:  AR20050010067


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Robert J. Osborn II           |     |Chairperson          |
|     |Mr. John M. Moeller               |     |Member               |
|     |Ms. Naomi Henderson               |     |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, in effect, that his reason for separation be
corrected to medical unfitness.

2.  The applicant states that he notified his command that he had been
diagnosed as suffering from glaucoma.  A surgery performed by a civilian
doctor in September 1991 for this condition had been unsuccessful.  He was
told not to attend drills and his unit would take care of everything.  The
applicant indicates he did not receive any of the official notices that
were supposed to have been sent to him.

3.  The applicant provides copies of a 7 August 1998 Department of Veterans
Affairs, Board of Veterans Appeals decision denying him service connection
for his glaucoma; a 24 June 1992 Department of Health and Human Services
decisional document granting him benefits based on his glaucoma; an NGB
Form 22 (Report of Separation and Record of Service); five pages of medical
treatment records; and North Carolina Army National Guard (NCARNG) Orders
134-113.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's records be corrected to show he
was medically separated.

2.  Counsel states the available records show the applicant was suffering
from a major medical condition, glaucoma, at the time of his missed drills.
 Counsel points out that prior to his discharge, the applicant filed for
and was awarded Social Security benefits for being blind in his left eye
with significant impairment to the right eye as to preclude driving, with
an effective date of disability of 1 September 1991.  Counsel contends that
the applicant did not neglect his duties as a Soldier.  He did not fail to
report for drills until he was advised that the situation would be handled
and he was told not to report for drills.

3.  Counsel provides no additional supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 July 1993.  The application submitted in this case is
dated 5 July 2005.


2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant entered active duty in the Regular Army on 29 June 1973,
and was honorably released from active duty and transferred to an Army
Reserve Troop Program Unit on 2 July 1977.

4.  On 21 August 1978 he enlisted in the NCARNG and was assigned to the
1st Battalion, 252nd Armor Regiment in Lumberton, North Carolina.

5.  A Southeastern General Hospital Out-Patient Record indicates the
applicant was admitted to the hospital on 26 July 1989 for a surgical
procedure for treatment of glaucoma of his left eye.

6.  On 19 September 1991 the applicant again had surgery on his left eye
for treatment of "uncontrolled glaucoma."

7.  On 10 February 1992 he underwent a surgical procedure on his right eye
for treatment of his glaucoma.

8.  During a 10 May 1992 Social Security Administration (SSA) hearing,
medical records were presented that indicated the applicant was being
treated for advanced glaucoma.  He was found to have no vision in the left
eye and a visual acuity of 20/200 as the best correction in the right eye
with some loss of field of vision in that eye.  His right eye vision was
described as sufficiently blurry and unclear as to preclude driving,
housework and watching television.  On 24 June 1992 the Social Security
Administration (SSA) granted the applicant disability benefits.  The
decisional document was sent to the same Post Office box as listed on
several documents in the applicant's military records.

9.  The record contains copies of three Office of The Adjutant General
North Carolina (OTAGNC) Forms 135-1 indicating the applicant was absent
without authority from unit training assemblies for the periods 13 –
14 June 1992,
11 – 12 July 1992, and 22 – 23 August 1992.


10.  The second page of these forms includes photocopies of one side of
three United States Postal Service (USPS) Return Receipts.  None of the
receipts have a delivery date entered, the June receipt is unsigned, and
the July and August receipts are signed by spelling of the applicant's
first name in the signature block with a "y" not an "ie" (as is the correct
spelling of the applicant's name).  All three were sent to his street
address not the Post Office mailing address of record.

11.  An OTAGNC Form 135-2 (Request for Discharge of Unsatisfactory
Participant) states "SGT J____ had been sick (eye operation)….Individual
did not answer when called….No one has had any contact with
individual….Individual not at last location that unit has."

12.  The date this form was prepared is not clear, though the date of the
first endorsement is typed as 15 December 1992.  There are a number of
handwritten entries on the form.  The first states that the request had
been "Laying around     1-252d for a year."  A second handwritten note was
added stating "and further recommend that the individual be reduced from
SGT to SPC 4 prior to discharge."  A third note states "Discharge as
(unreadable) Bn has had at least a year to request."

13.  A 4 November 1992 Army National Guard Annual Statement states the
applicant has 16 years, 11 months, and 29 days of creditable service as of
that time.  It shows he completed 17 years for which he met the Reserve
point level for a qualifying year towards retirement, plus three additional
years in which he did not meet the required participation levels for those
years to qualify toward retirement at age 60.

14.  A 15 June 1993 Battalion Retention Review Board recommended the
applicant be discharged.  Below the Board’s recommendation was the notation
20 year letter verified.

15.  The 31 July 1993 NCARNG Letter Orders 134-113 directed that the
applicant be discharged from the Army National Guard and Reserve of the
Army (USAR) effective the same date as a specialist four (E-4).

16.  A 31 July 1993 NGB Form 22 (Report of Separation and Record of
Service) shows the applicant was separated, as a specialist four (E-4), for
unsatisfactory participation with a general (under honorable conditions)
discharge under the provisions of National Guard Regulation 600-200,
paragraph 8-27g and Army Regulation 135-91, chapter 4.  The NGB Form 22
lists his service as 14 years, 11 months, and 10 days of service in NCARNG
with 1 year, 1 month, and 19 days of USAR service, and 3 years, 11 months,
and 29 days of active Federal service for a total period of service for pay
of 20 years and 28 days.  This document indicates his mailing address is a
Post Office box.

17.  A 4 November 1992 Army National Guard Annual Statement indicates the
applicant has 16 years, 11 months, and 29 days of creditable service for
pay.  He had completed 17 years for which he met qualification for
retirement plus three additional years in which he did not meet the
required participation levels to qualify those years toward retirement.
This document indicates his mailing address is a Post Office box.

18.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures), paragraph 4-8
states a Soldier excused from inactive duty training (IDT) may be required
to document the reason for the absence.  If the unit commander requires
this evidence, the Soldier will normally be notified within 14 days of the
absence.  Evidence submitted by the Soldier will be in the form of an
affidavit when the absence was beyond the Soldier's control.  Absence
caused by sickness or injury requires certification from a physician or
medical officer.  The Soldier must furnish the required evidence within 15
days of the commander's request.

19.  Paragraph 4-12 states a Soldier will be charged with unsatisfactory
participation when without proper authority they accrue in any one-year
period a total of nine or more unexcused absences from scheduled IDT.

20.  Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3
(Medical Fitness Standards for Retention and Separation, Including
Retirement) lists various medical conditions and physical defects which may
render a Soldier unfit for further military service.

21.  Army Regulation 40-501, paragraph 3-3 states Soldiers with conditions
listed in this chapter who do not meet the required medical standards will
be evaluated by a Medical Evaluation Board (MEB) and will be referred to a
Physical Evaluation Board (PEB) if qualified.

22.  Army Regulation 40-501, paragraph 3-15 states that any active eye
disease or any progressive organic disease or degeneration, regardless of
the stage of activity that is resistant to treatment and affects the
distant visual acuity or visual fields so that distant visual acuity does
not meet the standard is to be referred to an MEB.  Glaucoma is
specifically noted and referral to an MEB is required if it is resistant to
treatment, affects visual fields, or if side effects of required medication
are functionally incapacitating.
23.  The Department of Veterans Affairs Schedule for Rating Disabilities
indicates that glaucoma is rated based on the impairment of visual acuity
or field loss.  A finding of blindness in one eye with vision in the other
eye of 20/200 warrants a 70 percent evaluation.

24.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223
(Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding
section 12731b, (Special rule for members with physical disabilities not
incurred in line of duty).  Section 12731b(a) states that a member of the
Selected Reserve who no longer meets the qualifications for membership in
the Selected Reserve solely because the member is unfit because of physical
disability may, for the purposes of section 12731 (Age and Service
Requirements) of this title, be treated as having met the service
requirements and be provided with the notification required if he has
completed at least 15 and less than 20 years of service.

25.  The authority provided by section 12731b, Title 10, U. S. Code
currently exists as a force reduction/transition initiative in section
12731a(c)(3) for the period beginning 23 October 1992 and ending 30
September 2001 for those members who completed at least 15 years of service
as of 1 October 1991.  The intent of the new subsection was to make the
authority permanent.  It is not “retroactive” beyond the effective date (23
October 1992) already provided for.

DISCUSSION AND CONCLUSIONS:

1.  Several notations on OTAGNC Form 135-2 used to process the applicant's
separation are questionable in nature.  The form indicates the separation
recommendation had been "Laying around 1-252d for a year" when it could not
have been since the date of the first endorsement is 15 December 1992 and
the applicant was discharged 7 months later on 31 July 1993.

2.  Further, the fact that the signatures on two of the three USPS return
receipts misspell the applicant's name, the third is not signed, none
contain the required delivery date, and that none were sent to his official
Post Office box mailing address raises a question of whether or not he
received the notices.

3.  More importantly, the applicant's medical records show he had at least
three surgeries by civilian physicians for uncontrolled glaucoma, the last
being on 10 February 1992, four months before his first unauthorized
absence.  The notation on the OTAGNC Form 135-2 shows the command was aware
of these surgeries and his eye condition.  This fact, however, does not
appear to have been included in the information presented to the 15 June
1993 Battalion Retention Review Board.
4.  The medical records show that following the February 1992 surgery the
applicant was found to be virtually blind in one eye with a loss of field
of vision and only 20/200 visual acuity in the other.  With the reported
severity of visual problems, it is unlikely that the applicant would have
been able to perform any military duties between the date of his surgery
and the date of the first recorded absence.  His command would have had to
have been aware of this severe problem.

5.  Regulations require that personnel with glaucoma are to be evaluated by
an MEB.  Especially with the nature and severity of his eye condition, the
applicant should have been referred to an MEB for a medical fitness
determination as early as 1989 and clearly following the February 1993 eye
surgery.  There is no indication the command ever referred the applicant
for a medical evaluation or review by an MEB.

6.  Had the applicant been properly evaluated and referred to the MEB it is
safe to assume that he would have been found medically unfit.  If he had
been properly processed for the MEB his absences would have been considered
excused absences and the resultant reduction in grade would not have
occurred.

7.  With a finding that the applicant was medically unfit, based on his
completion of 17 years of qualifying service toward retirement, he would
have been entitled to elect an early retirement in lieu of discharge.

8.  In light of the fact that the command failed to comply with regulations
that required that the applicant's medical condition be reviewed by an MEB,
he was denied his due rights.  The orders reducing the applicant to
specialist four and discharging him for unsatisfactory performance are
unjust and should be rescinded.

9.  Therefore, the applicant's records should be corrected to show the
absences from unit training assemblies, for the periods 13 – 14 June 1992,
11 – 12 July 1992, and 22 – 23 August 1992, were excused absences due to
medical reasons; that the applicant was found to be medically unfit for
retention; that he was transferred to the Retired Reserve on 31 July 1993,
in accordance with the Temporary Special Retirement Qualification
Authority; and is entitled to all benefits thus conferred.

BOARD VOTE:

__JMM___  __NH___  __RJO__  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 the
state Army National Guard records and the Department of the Army records of
the individual concerned be corrected by showing that:

      a.  the absences from unit training assemblies for the periods 13 –
14 June 1992, 11 – 12 July 1992, and 22 – 23 August 1992 were excused
absences due to medical reasons;

      b.  the applicant was found to be medically unfit for retention;

      c.  the 31 June 1993 orders that reducing the applicant to specialist
(E-4) and discharging him for unsatisfactory performance were rescinded;

      d.  the applicant qualified for a 15 year retirement and issuing him
a Letter of Eligibility for retired pay at age 60; and

      e.  he was transferred to the Retired Reserve on 31 July 1993 in
accordance with the Temporary Special Retirement Qualification Authority
and is entitled to all benefits thus conferred.




                            __      Robert J. Osborn II___________
                                      CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050010067                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060713                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Grant                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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