RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 April 2007
      DOCKET NUMBER:  AR20060009532


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 record be corrected to show
his transfer to the Retired Reserve was voluntary and not based on a
medical disqualification, as is currently shown.

2.  The applicant states, in effect, he underwent a Physical Evaluation
Board (PEB) on 15 June 2004, which found him fit to perform the duties of
his office, grade and military occupational specialty (MOS).  The PEB also
determined he was deployable within the limitations of his profile.
However, in September 2004, the Command Surgeon's Office notified him that
he had one or more disqualifying conditions, which were the same conditions
evaluated by the PEB,  and in December 2004, he received the retirement
orders he is now contesting.

3.  The applicant provides the following documents in support of his
application:  PEB Memorandum, dated 15 July 2004; Retirement Orders, dated
22 December 2004; and Physical Evaluation, dated 27 January 2004.

CONSIDERATION OF EVIDENCE:

1.  On 27 January 2004, the applicant underwent a physical examination
completed for medical board purposes.  The Report of Medical Examination
(DD Form 2808) completed for this examination shows he was diagnosed with
Hypertension, seizure disorder, and obstructive sleep apnea (OSA).

2.  On 6 July 2004, a PEB convened in Washington D.C. to consider the
applicant's case.  The PEB evaluated the applicant's diagnosed condition of
obstructive sleep apnea (OSA), which it determined was controllable through
the use of a continuous positive airway device.

3.  The PEB also determined his permanent physical profile permitted the
applicant to perform all mandatory functional activities to include wearing
a helmet and carrying and firing a rifle and completing the standard Army
Physical Fitness Test (APFT).  The PEB also found the applicant's
hypertension and nocturna seizure disorder conditions were medically
acceptable.  The PEB finally found the applicant physically fit and
recommended he be returned to duty.

4.  On 15 July 2004, the Chief, Operations Division, United States Army
Physical Disability Agency (USAPDA), approved the PEB pertaining to the
applicant.  This official confirmed the applicant was determined to be fit
for active duty and to perform the duties of his office, grade, rank and
MOS.  He also indicated the applicant was deployable within the limitations
of his profile.  He concluded by indicating that if the applicant was not
pending retirement, he should be returned to duty.

5.  On 7 December 2004, the United States Army Human Resources Command, St.
Louis, Missouri (HRC-St. Louis) Command Surgeon notified HRC-St. Louis
personnel officials that the applicant was unfit for continued military
service.  The applicant's records are void of any medical documents used by
the Command Surgeon's office to support this determination of unfitness.

6.  On 22 December 2004, HRC-St. Louis Orders Number C-12-427673 were
issued directing the applicant's reassignment to the Retired Reserve based
on his being medically disqualified for further USAR service.

7.  In connection with the processing of this case, an advisory opinion was
obtained from the Operations Officer, Eastern Region, HRC-St. Louis.  This
official indicates a comprehensive review of the documents on file in the
applicant's packet was completed.  This review showed that the applicant
was initially found fit for duty by the PEB in July 2004; however, in
September 2004; a review of the PEB findings and of additional documents
was conducted by the HRC-St. Louis Command Surgeon's Office.  This resulted
in a determination that the applicant was medically disqualified for
retention in the United States Army Reserve (USAR).  The HRC-St. Louis
official further indicated that as a result of the applicant's medical
disqualification, he was provided an option letter allowing him to either
elect discharge or transfer to the Retired Reserve.  In November 2004, the
applicant elected transfer to the Retired Reserve, and orders were issued
accomplishing this transfer on 22 December 2004.  This official recommends
the orders transferring the applicant to the Retired Reserve remain in
effect as they were initially issued.

8.  On 20 January 2007, the applicant provided a rebuttal to the HRC-St.
Louis advisory opinion.  He stated that he is requesting a copy of the
additional medical documents presented to the Command Surgeon's Office that
lead to the decision to disqualify him from further service.  He indicates
that it is odd that he could have been cleared by the PEB in July 2004 and
two months later a review of documents he has never seen resulted in the
Command Surgeon's Office determination he was no longer qualified for
continued service.

9.  The applicant also stated that if there is a medical problem he is not
aware of, he would like to receive the documentation showing such a
condition so he can apply for benefits from the Department of Veterans
Affairs (VA) as it must have developed during his last period of active
duty service.  The applicant states that he does not believe there is such
a condition and there has been some sort of miscommunication between
someone and the Command Surgeon's Office.  He indicates that as outlined in
his application, he believes a mistake has been made that resulted in an
improper conclusion to his career, which prevents him from any further
service during this time of war.

10.  During the processing of this case, a member of the Board staff
contacted the HRC-St. Louis Command Surgeon's office to clarify the
processing procedures followed in the applicant's case.  These officials
determined, after reviewing the PEB and USAPDA records, that further follow-
up on the applicant's medical condition was required by their office.  As a
result, given the applicant had requested voluntary transfer to the Retired
Reserve through his chain of command in October 2004, it would be
appropriate to grant the relief requested by the applicant to change the
reason for his transfer to the Retired Reserve from Medically Disqualified
to Voluntary.

11.  Army Regulation 40-501 (Standards of Medical Fitness) contains
guidance on medical fitness standards.  Paragraph 9-10 contains guidance on
the disposition of medically unfit Reservists.  It states, in pertinent
part, that normally Reservists who do not meet fitness standards will be
transferred to the Retired Reserve or discharged from the USAR.  It further
stipulates that Reservists with non-duty related medical conditions who are
pending separation for not meeting medical retention standards may request
referral to the PEB for a determination of fitness.

12.  Paragraph 9-12 of the medical fitness regulation contains guidance on
requesting a PEB evaluation.  It states that Reserve Component (RC)
Soldiers with non-duty related medical conditions who are pending
separation for failing to meet the medical retention standards are eligible
to request referral to the PEB for a determination of fitness.  It further
indicates that once a Soldier requests a PEB, the case will be forwarded to
the PEB by the United States Army Reserve Command (USARC) Regional Support
Command or the HRC-St. Louis Command Surgeon's Office and will include the
results of a medical evaluation that provides a clear description of the
medical condition(s) that cause the Soldier to not meet medical retention
standards.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was improperly transferred to the
Retired Reserve as medically disqualified for retention after he had been
found fit for continued service by a PEB was carefully considered and found
to have merit.

2.  The evidence of record shows that in July 2004, a PEB, after having
fully evaluated the applicant's (OSA), hypertension and nocturna seizure
disorder conditions, found the applicant was physically fit and recommended
he be returned to duty, and the PEB findings were approved by the USAPDA.

3.  The record also shows that in September 2004, the HRC-St. Louis Command
Surgeon's office determined the applicant was medically unfit for
retention; however, the medical examination and or treatment records upon
which this determination was made are not on file and were not provided to
the applicant.  Further, when this determination was made, the applicant
was given the options of either discharge or transfer to the Retired
Reserve; however, it does not appear he was provided the option of
requesting a PEB fitness determination, as is authorized by regulation.

4.  The HRC-St. Louis advisory opinion in this case indicates the medical
disqualification determination on the applicant was based on additional
documents received by the Command Surgeon's office subsequent to the PEB
evaluation on the applicant, and it recommends the applicant's transfer to
the Retired Reserve not be reversed.  However, a review of the applicant's
case completed by the HRC-St. Louis Command Surgeon's office at the request
of a member of the Board staff resulted in a revised recommendation that
the applicant be granted the relief he requests and that the reason for his
transfer to the Retired Reserve be changed from Medically Disqualified to
Voluntary.

5.  In view of the fitness determination rendered by the PEB in July 2004,
and given the revised recommendation of the HRC-St. Louis Command Surgeon's
office, it would be appropriate and serve the interest of justice to grant
the requested relief by amending HRC- St. Louis Orders Number C-12-427673,
dated 22 December 2004, the orders transferring the applicant to the
Retired Reserve, accordingly.

BOARD VOTE:

___JEV _  __PHM __  __GJP__  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
amending United States Army Human Resources Command, St. Louis, Missouri,
Orders Number C-12-427673, dated 22 December 2004, by changing the reason
from Medically Disqualified to "Voluntary".




                                  _____James E Vick     ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009532                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/04/24                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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