RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060008346 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Edward Montgomery

Member

Ms. Rea M. Nuppenau

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 she be reinstated in an active status to complete 20 years of service for retirement.

2.  The applicant states, in effect, that she should be allowed to complete two years in an active status and allowed to complete correspondence courses to have 20 years for retirement.  She further states she went into the Individual Ready Reserve (IRR) and was diagnosed with several medical and mental problems.  

3.  The applicant continues that she only transferred to the IRR to address her medical and mental problems.  She states at that time she was not able to complete the required courses for promotion.  She concludes that since then she has stabilized and is able to complete them.   

4.  The applicant provides a Record of Medical Evaluation Communication and Appeal, dated 5 June 2006; an Appeal for Retirement Eligibility Injustice, dated 
5 June 2006; Headquarters, 91st Division (Exercise) Orders 316-20, dated 
12 November 1997; a U.S. Army Human Resources Command, St. Louis (USAHRC-STL) Chronological Statement of Retirement Points, dated 
30 December 2004; a undated 6AA Form 37 (Computation of Mandatory Removal Date); a USAHRC-STL memorandum Subject: Expiration of retention in the U.S. Army Reserve, dated 25 July 2004; a USAHRC-STL Orders D-07-427108R, dated 29 November 2004; a USAHRC-STL memorandum Subject: Notification of Medical Disqualification, dated 10 December 2004; USAHRC-STL Orders C-12-426806, dated 3 December 2004; a DA Form 67-8 Officer Evaluation Report (OER), with the ending period 14 March 1997; and a Social Security Administration memorandum (Retirement, Survivors and Disability Insurance), dated 5 October 1998.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the Ohio Air National Guard and the California Air National Guard.  She was appointed as a Second Lieutenant in the California Army National Guard on 30 August 1986.  

2.  In her Appeal for Retirement Eligibility Injustice, the applicant stated in part that in July 1986 she was diagnosed with atypical depression. 

3.  On 4 May 1987, the applicant transferred to the U.S. Army Reserve (USAR).  She was promoted to the rank of First Lieutenant on 29 August 1989.  On 
28 August 1993, the applicant was promoted to the rank of captain.  
4.  In her Appeal for Retirement Eligibility Injustice, the applicant stated in part that in July 1995 she started outpatient psychological counseling for post traumatic stress disorder (PTSD).  She further stated that in October 1995 after a psychological evaluation for referral to a psychiatrist she was started on medication for depression.  

5.  A DA Form 67-8 OER with the period ending 14 March 1997 shows that the applicant's rater box checked her with 1 [meaning high degree] in (Part IV-professional competence) subsection 5 "Performs under physical and mental stress."  In Part V, the rater box checked her performance with "always exceeded requirements".  The applicant's senior rater box checked her in the top block for potential for promotion.  The senior rater comments included "All aspects of her duties were executed with excellence" and "She possesses the mettle of a commander, and deserves promotion now."

6.  In her Appeal for Retirement Eligibility Injustice, the applicant stated in part that in May 1997 she stayed at a homeless shelter with her daughter for two months and started outpatient psychological counseling and psychological treatment.

7.  Headquarters, 91st Division (Exercise) Orders 316-20, dated 12 November 1997, show that the applicant was voluntarily assigned to the USAR Control Group (Reinforcement) effective 1 July 1997.

8.  By memorandum dated 5 October 1998, the Social Security Administration informed the applicant that she was entitled to monthly disability benefits beginning August 1997.

9.  In her Appeal for Retirement Eligibility Injustice, the applicant stated in part that in January 1999 she was administered an electroencephalogram (EEG) that revealed an abnormal brain with lesions/damage to the left temporal and bifrontal lobes with results that were consistent with manic depression and attention-deficit/hyperactivity disorder (ADHD).  She further stated that in March 1999 she started a 45-day PTSD program and received special approval to attend a three month PTSD program and that a Veterans Affairs psychiatrist started treating her for manic depression.  

10.  By USAHRC-STL memorandum, dated 26 July 2001, the Department of the Army Reserve Components Selection Board notified the applicant that she was not selected for a second time for promotion. The memorandum further stated "As a result of this second nonselection, you must be discharged in accordance with Title 10, U.S. Code 14513 or Army Regulation 140-10, your established removal date is not later than 1 January 2002, unless you are eligible for and request transfer to the Retired Reserve."

11.  On 28 February 2003, the applicant received a physical examination and medical evaluation.

12.  By memorandum, dated 21 March 2003, The Federal Strategic Health Alliance informed the applicant's Commander and Command Surgeon that the results of her retention physical examination showed that she was physically fit for retention.

13.  On 19 September 2003, the USAHRC-STL Command Surgeon requested that the applicant provide a mental health evaluation to determine the severity of her condition and any associated duty limitations.

14.  In December 2004, the USAHRC-STL Command Surgeon informed the applicant that her medical records revealed she had bipolar disorder, panic disorder, attention deficit disorder, and PTSD.  These medical conditions disqualified her for retention in the USAR.  The applicant elected to be transferred to the Retired Reserve.

15.  On 3 December 2004, the applicant was released from the USAR Control Group (Reinforcement) and was assigned to the Retired Reserve by reason of being medically disqualified.  

16.  The applicant’s USAHRC-STL Chronological Statement of Retirement Points, dated 14 July 2006, shows she completed 18 years of qualifying service.  

17.  In the processing of this case, an advisory opinion was obtained from the Office of Regional Personnel Actions Division, USAHRC-STL.  That office stated that the applicant had 18 years of qualifying service and was granted a waiver prior to being medically retired.  The advisory opinion stated "At that time she had 3 years to complete the necessary requirements to attain 20 qualifying years of service Ms Sh--- was a 2x Passover and did nothing for seven years.  We do not have the authority to grant additional time for completing courses after retirement or discharge."

18.  Army Regulation 135-175 (Separation of Officers) states, in pertinent part, officers in the grade of first lieutenant, captain, or major, who completed their statutory military obligation, will be discharged for failure to be selected for promotion after the second consideration by a Department of the Army Reserve Components Selection Board.

19.  Title 10, U. S. Code, section 14505 states that an Army captain who has failed of selection for promotion to the next higher grade for the second time shall be separated in accordance with section 14513 of this title not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

20.  Title 10, U. S. Code, section 12646(a) states that, if on the date prescribed for the discharge of transfer from an active status of a reserve commissioned officer he is entitled to be credited with at least 18, but less than 19, years of service, he may not be discharged or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the third anniversary of the date on which he would otherwise be discharged or transferred from an active status.  This section does not apply to officers who are discharged or transferred from an active status for physical disability, for cause, or because they have reached the age at which transferred from an active status or discharge is required by law.

21.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

22.  Title 10, U. S. Code, 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.

23.  Public Law 103-337, dated 5 October 1994, established early reserve retirement eligibility for Soldiers involuntarily separated from the Selected Reserve due to physical disability during the period 5 October 1994 through 
30 September 1999 (later extended through 31 December 2001) as a force reduction initiative.  Eligibility was based on a minimum of 15 years of qualifying service toward Reserve Component retirement.  

24.  Public Law 106-65, enacted 5 October 1999, made this change permanent amended chapter 1223 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 may, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should be reinstated to an active status to complete 20 years of service for retirement.  Evidence of record shows at the time of her discharge she had 18 years of qualifying service.  Evidence also shows she was a two time passover in July 2001 and she was required by law to be removed from an active status.  The evidence also shows, however, that she was retained for an additional three years, as allowed for by law, to attain her 
20 years.  By law, she is not eligible for further retention or for reinstatement.

2.  On 1 July 1997, the applicant was voluntarily assigned to the USAR Control Group (Reinforcement).  She contends further she transferred to the IRR due to medical and mental health problems.  She provided a timeline of when she contends she received psychological/psychiatric counseling/treatment.  However, no medical evidence of record was provided to support her contentions.  In addition, her last OER with the ending period 14 March 1997 shows that she exceeded performance requirements during that rating period.

3.  Between February and March 2003, the applicant received a physical examination and medical evaluation.  Her physical examination determined that she was physically fit for duty.

4.  On 19 September 2003, the USAHRC-STL Command Surgeon requested that the applicant provide a mental health evaluation and in December 
2004 determined that she had bipolar disorder, panic disorder, attention deficit disorder, and PTSD.  The applicant was found to be medically disqualified for retention in the USAR.  On 3 December 2004, she was released from the USAR Control Group (Reinforcement) and assigned to the Retired Reserve.  

5.  In the absence of evidence to contraindicate the ratings and comments she received on her 14 March 1997 OER, there is insufficient medical evidence and the applicant has not provided medical evidence at this point to show she suffered from any illness or injury prior to her going in to the USAR Control Group (Reinforcement) in July 1997 that prevented her from performing her duties.  In view of the foregoing, there is no basis for granting an early retirement based upon medical disqualification for retention in the Selected Reserve.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__WFC__  __EM___  ___RMN_  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.




__     _William F. Crain     _
          CHAIRPERSON




INDEX

CASE ID
AR20060008346
SUFFIX

RECON

DATE BOARDED
8 MARCH 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SHWARTZ
ISSUES         1.
136.0600.0000
2.

3.

4.

5.

6.