RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060010700 


	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



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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, revocation of his discharge orders
(D-02-604885), dated 24 February 2006, and reinstatement to an active Reserve commissioned status. 

2.  The applicant states, in effect, he was denied due process.  He also states that referencing the attached "Legal Supporting Argument 20060404," he should have been afforded an opportunity to present his case for a waiver or reduced profile that allowed continued service.  The Army is in need of qualified Soldiers and officers.  He is including documentation to show that his injuries have healed greatly.  He is qualified and capable.  He wants nothing more than to be allowed to continue to serve the Army and deploy with his unit. 

3.  The applicant provides copies of a "Legal Support Argument 20060404," his physical profile, his MRI lumbar spine scan report, his 2004 medical report, three memorandums of support submitted to his Military Occupational Specialty Medical Retention Board (MMRB), his 2004 Physical Profile, his officer evaluation report ending 9 September 2005, his 2005 Physical Profile, his Clinical Record, his 2005 medical report, and his discharge orders, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the California Army National Guard (CAARNG), as a second lieutenant, effective 19 August 2000, with prior enlisted service.  He was promoted to first lieutenant effective 19 August 2002.

2.  The applicant entered on active duty effective 9 September 2002 in support of Operation Noble Eagle (9 September 2002 to 31 August 2003).  He was ordered to active duty for medical reasons effective 9 September 2003.

3.  The applicant was issued a permanent profile of 113111, on 12 January 2004, due to chronic low back pain (Spondylosis).  His assignment limitations were no running, no backpack, no repetitive jumping activities, aerobic training at his own pace and distance, no lifting, no firing rifle in prone position, bicycling with a backrest, and no marching.  The profile was approved on 20 January 2004.

4.  A Physical Evaluation Board (PEB) convened on 30 January 2004, and found the applicant did not meet the medical fitness retention standards under the provisions of Army Regulation 635-40, due to functional impairments in his back. 
His PEB information was not available, it was derived from the Soldiers Management System (SMS), Army Human Resources Command (AHRC), St. Louis, Missouri, Case Files for Separation.

5.  The applicant was discharged from active duty effective 5 April 2004, for disability with severance pay ($28,000), under the provisions of Army Regulation 635-40, paragraph 4-24B(3).  He was transferred to a CAARNG unit.

6.  On 14 April 2004, the applicant underwent a MRI lumbar spine scan for lower back pain.  The impression showed an essentially normal MRI of his lumbar spine.

7.  A medical report, dated 25 August 2004, states that the applicant was discharged from the Army in April 2004 with 10 percent disability and has been doing ongoing physical therapy since his discharge.  His lumbar pain had greatly improved with the physical therapy.  The applicant had a repeat MRI scan in April 2004, which showed essentially normal results.  The applicant was cleared to do fast walking, rather than doing running which might cause jarring and pounding movement aggravating his problems in the future.  Sit-ups were not recommended as this could aggravate low back problems.  He would be able to carry 20 to 30 pounds of equipment without any problems.  Wearing a helmet would be fine as well.  With these restrictions, the applicant would be able to perform any duties reentering the military service would require.

8.  On 18 August 2004, the CAARNG, issued the applicant separation orders separating him from the ARNG and transferring him to the Individual Ready Reserve (IRR).

9.  The SMS showed the applicant was reassigned from the IRR to a troop program unit (TPU) with the 63rd Regional Readiness Command (RRC) on 1 September 2004.

10.  The Chief, National Guard Bureau, issued Special Orders Number 228AR, dated 17 September 2004, withdrawing the applicant's Federal recognition and transferring him to the United States Army Reserve (USAR).

11.  The applicant submits three memorandums of support, dated 24 and 25 August 2005, from his detachment sergeant, his immediate rater, and his brigade commander, to the MMRB.  The memorandums recommended the applicant's physical profile be reevaluated or reduced so that the applicant could be allowed to continue to serve as a commissioned officer in the United States Army Reserve and support worldwide deployment.  

12.  The applicant was issued a permanent profile of 112111, on 6 November 2005, due to back pain.

13.  A medical report, dated 8 November 2005, states that the applicant was able to do all physical activities.  His only limitation was prolonged running.  It was recommended that, for physical testing, the patient substitute walking, bicycling, or swimming for aerobic exercise.  The medical opinion was the applicant was able to participate in all functional areas.  

14.  The applicant was promoted to captain effective 20 January 2006.

15.  AHRC, St. Louis, issued Orders Number D-02-604885, dated 24 February 2006, discharging the applicant from the USAR, effective 24 February 2006.  

16.  The SMS shows the applicant was discharged involuntarily, medically disqualified, not as a result of his own misconduct.

17.  The applicant provides a copy of Legal Support Argument 20060404, that stated it was prepared by his branch manager, AHRC, St. Louis.  The branch manager stated that the applicant was never discharged appropriately from the service due to no fault of his own.  The records show the ARNG transferred the applicant to the IRR instead of discharging him.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) also showed the applicant was transferred to the 40th Military Police Company, which was a Reserve unit.  This was no fault of the Soldier but looks to be an error on the part of the separation point and the ARNG.  

18.  The branch manager also stated that based on the fact that the Soldier was never actually discharged and was transferred into the IRR instead, per Army Regulation 601-210, paragraph 5-53, enlisted members may receive a medical waiver for enlistment provided they can show that their physical condition has improved to meet retention criteria.  This documentation was provided by the Soldier.  This should also therefore apply to officers.  

19.  The branch manager further stated that it was also evident by the applicant's statement, that he felt pressure to concur with the board findings and that he felt duress to sign the document.  There also does not appear to be any intentional negligent actions on the Soldier's behalf upon requesting reentry to a TPU unit being as he was in an IRR status through no fault of his own.  Since this Soldier has also been serving honorably since 2004, he should be reinstated and allowed to continue service.

20.  In a memorandum, dated 20 July 2006, the Chief, Administrative and Civil Law, in response to a request for a legal review from the Director, Regional Support – Western, stated that the applicant's Federal recognition was withdrawn by the ARNG in 2004 for physical disability reasons, and he was transferred to the IRR for the purpose of final discharge.  Although the officer was later assigned to a TPU, HRC, St. Louis, properly discharged the officer in February 2006.  He had no legal objection to the discharge of the officer.   

21.  The Administrative and Civil Law staff member also stated that on 30 January 2004, a PEB convened and found that the applicant did not meet medical fitness retention standards under the provisions of Army Regulation 635-40 due to functional impairments in his back.  The applicant accepted the results of this Board as well as severance pay of $28,000.  Subsequently, the Chief, National Guard Bureau, on 5 April 2004, withdrew Federal recognition in accordance with National Guard Regulation 635-101.  

22.  On 5 April 2004, the applicant was discharged from the CAARNG based on the results of the PEB.  On 18 August 2006, the CAARNG issued the applicant a separation order from the ARNG and transferred him to the IRR with an effective date of 5 April 2004.  On 1 September 2004, the applicant was transferred from the IRR to a TPU with the 63rd RRC.  There is no evidence that a waiver was obtained to effect this transfer in light of the medical reasons for which he was discharged from the ARNG.  The 63rd RRC initiated a medical review board in August 2005.  On 24 February 2006, AHRC, St. Louis, issued the applicant an honorable discharge order.  Although the applicant was transferred to the IRR in 2004, his discharge was properly executed on 24 February 2006.

23.  The Administrative and Civil Law staff member also stated the applicant was discharged from the IRR in February 2006, approximately 22 months after withdrawal of his Federal recognition.  Despite being discharged as an officer in the Reserve of the Army by the ARNG, the applicant was erroneously assigned by AHRC, St. Louis, to a TPU position in the 63rd RRC on 1 September 2004, and has served in that status collecting pay and allowances and attending drills and other military functions.  In view of the foregoing fact, although the applicant should have been discharged from the USAR on or about 5 April 2004, his more recent discharge was proper.

24.  Army Regulation 635-40, paragraph 4-24, pertains to the disposition of Soldiers by the AHRC upon the final decision of the Physical Disability Agency.  It states that AHRC will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.

25.  Army Regulation 135-175, prescribes the policies and procedures governing the separation of Reserve officers.  Paragraph 2-8c of this regulation provides that the Commander, AHRC, St. Louis, will execute the discharge of an officer when notified of withdrawal of the officer's Federal recognition.

26.  National Guard Regulation 635-101, prescribes the policies and procedures for determining the capacity and general fitness of commissioned officers for continued Federal recognition in the ARNG.  Paragraph 11 of this regulation specifies that a Soldier with a medical or physical condition that prevents him from performing his duties must have his Federal recognition withdrawn.  Following the PEB determination that the applicant did not meet physical fitness standards, the Chief, National Guard Bureau withdrew the applicant's Federal recognition.

27.  National Guard Regulation 635-100, prescribes the policies and procedures for the separation of ARNG commissioned officer.  Paragraph 7a of this regulation requires that an officer who is a member of the ARNG becomes a member of the USAR when his/her Federal Recognition is withdrawn.  

28.  Army Regulation 601-210, paragraph 5-53, provides for enlistment within 90 days of removal from the Temporary Disability Retirement List (TDRL).

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that a PEB determined the applicant did not meet medical fitness retention standards under the provisions of Army Regulation 
635-40 and recommended he be separated with severance pay.  The applicant accepted the results of the board and was discharged from active duty on 5 April 2004.

2.  The evidence also shows that the applicant was discharged from the CAARNG; however, he was erroneously assigned to the IRR.  It appears that he was reassigned to a TPU on 1 September 2004, with no evidence of a waiver obtained to effect this transfer in light of the medical reasons for which he was discharged.  Subsequently, AHRC, St. Louis, executed orders discharging the applicant on 24 February 2006.  The Administrative and Civil Law Division found no legal objection to this discharge.  It was determined that the applicant should have been discharged from the USAR on or about 5 April 2004 and his more recent discharge was proper.
3.  The applicant's contentions do not demonstrate error or injustice in his discharge from the USAR, nor error or injustice in the disposition of his case by his eventual separation from the service.  Without evidence to show otherwise, it is concluded that the applicant was properly discharged on 24 February 2006.  Therefore, he is not entitled to revocation of his discharge orders and reinstatement to an active Reserve commissioned status.

4.  The Legal Support Argument 20060404 submitted by the applicant states that Army Regulation 601-210, paragraph 5-53, should also apply to the applicant.  However, the applicant is not entitled to the provisions of Army Regulation 
601-210, paragraph 5-53, as a commissioned officer on the TRDL.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___LMD_  __DKH __  __KAN__  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.




      _______
                CHAIRPERSON




INDEX

CASE ID
AR20060010700
SUFFIX

RECON

DATE BOARDED
20070320
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.00
2.

3.

4.

5.

6.


ABCMR Record of Proceedings (cont)                                         AR20060010700


7


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508