RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20060015770 


	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.


x

	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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s discharge on 15 January 2003 be vacated.  He also requests that an enlistment extension be approved to allow the applicant to complete 30 years of creditable service for retirement purposes.  

2.  Counsel states that the applicant was evaluated on 29 August 2002 by a civilian doctor for symptoms of weakness and a general feeling of being run down.  Her lab results showed her hemoglobin level was well below the standard reference of 12.0 to 16.0 grams per deciliter (g/dl).  The applicant was unable to complete the run portion of the Army Physical Fitness Test (APFT) on 30 August 2002 because of her condition.  She conveyed to her commander that she felt weak and could not complete the APFT.  During a counseling session, the applicant’s company commander recommended that she get a complete medical check-up from her civilian doctor and provide the medical documentation of her anemic condition to the command.  

3.  Counsel also states that the applicant’s command requested permission for the Deputy State Surgeon to consult with her civilian doctor to verify her condition.  The Deputy State Surgeon verified the applicant’s condition and limitations in participating in strenuous exercise to include running, swimming, push-ups, sit-ups, etc.  At that time, the applicant should have been placed on temporary or permanent profile in accordance with Army Regulation 40-501 until her condition could be stabilized or treated properly.  In addition, she should have had a complete medical evaluation by a military provider.  He states the applicant was eligible for a waiver as well as a profile.  Counsel further states the applicant made several requests for a profile to allow her to take an alternate APFT.  She was well aware of the requirement to pass an APFT in order to extend or reenlist; however, she was unable to complete the run portion of her APFT due to her anemic condition.  

4.  Counsel further states that the applicant’s request to the Inspector General (IG) was never addressed or formally addressed despite her repeated requests for an official determination.  Counsel states that the command had the authority to approve a profile that would have allowed the applicant to participate in an alternate APFT.  The command did not follow the Army’s instruction and properly address the applicant’s condition.  After more than 29 years of service to the Virgin Islands Army National Guard (VIARNG), the command just allowed the applicant’s enlistment to end.
5.  Counsel provides the following documents in support of the applicant’s application:

Enlistment Contract, dated 16 January 1970;
DD Form 214 (Certificate of Release or Discharge from Active Duty), 
for the period ending 25 September 1970;
Enlistment Contract, dated 16 January 1974;
NGB Form 22 (Report of Separation and Record of Service), dated 
15 January 2003;
Page 3 of DA Form 20 (Enlisted Qualification Record);
Award certificate for the Meritorious Service Medal, dated 11 October 
1999;
Five DA Forms 2166-6 (Enlisted Evaluation Report) for periods ending 
October 1983, October 1984, October 1985, October 1986, and October 1987;
Twelve DA Forms 2166-7 (Noncommissioned Officer Evaluation 
Report);
Lab Results, dated 29 August 2002;
DA Form 4856 (Developmental Counsel Form), dated 30 August 
2002;
Letter from a civilian doctor, dated 26 September 2002;
Letter from the Deputy Chief of Staff, Personnel, VIARNG, dated 
4 October 2002;
Memorandum from the Deputy State Surgeon, dated 29 October 
2002;
Hematology Report, dated 13 December 2002;
Letter from civilian doctor, dated 18 December 2002;
Memorandum from the Deputy Chief of Staff for Personnel 
(DCSPER), dated 3 January 2003;
DA Form 4856, dated 10 January 2003;
DA Form 1556 (Inspector General Action Request), dated 14 January 
2003;
Letter from civilian doctor, dated 22 January 2003;
Email, dated 31 January 2003;
Memorandum, Subject:  Request for a final determination on my 
re-enlistment in the Virgin Islands Army National Guard, dated 6 February 2003; and 
Chapter 7 of Army Regulation 40-501 (Standards Of Medical Fitness), 
dated 27 June 2006.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 16 October 1949.  After having prior service in the Women’s Army Corps, the applicant enlisted in the VIARNG on 16 January 1974. 

3.  The applicant was promoted to the rank of sergeant first class (SFC) on 22 November 1981.

4.  She was discharged from the VIARNG on 15 April 1988 at her expiration term of service (ETS).  

5.  The applicant enlisted in the VIARNG on 7 June 1988 and was discharged on 6 December 1997 under the provisions of National Guard Regulation 600-200, paragraph 8-26d by reason of two consecutive APFT failures.  

6.  The applicant reenlisted in the VIARNG on 16 January 1998 for a period of
1 year.  Her service personnel records contain a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 7 December 1998.  This document shows she voluntarily extended her 1 year enlistment agreement of 
16 January 1998 for a period of 3 years.  The date of her new ETS was extended to 15 January 2002.

7.  A DA Form 4836, dated 12 January 2002, shows she voluntarily extended her enlistment agreement of 16 January 1998 for a period of 5 months and 15 days.  The date of her new ETS was extended to 30 June 2002.

8.  A DA Form 4836, dated 30 June 2002, shows she voluntarily extended her enlistment agreement of 16 January 1998 for an additional 6 months and 15 days.  The date of her new ETS was extended to 15 January 2003.

9.  A DA Form 4836, dated 31 July 2002, shows she voluntarily extended her enlistment agreement of 16 January 1998 for an additional 6 months and 15 days.  The DA Form 4836 indicated the date of her new ETS was extended
to “15 January 2003.”

10.  On 30 August 2002, the applicant was counseled on failing her diagnostic APFT administered to her on 30 August 2002.  The unit commander indicated that the applicant failed to meet the standard for her push-ups and she did not start or finish the 2-mile run.  During the AFPT, the applicant had informed the commander that she was feeling weak and would not be able to perform her 
2-mile run.  The applicant was reminded that in the event she failed to take and pass the APFT by the end of her new period of enlistment (“15 January 2003”), she would be ineligible for reenlistment and would be separated from the VIARNG.  The commander recommended the applicant get a complete medical check-up from her civilian doctor so that she could make a recommendation regarding her medical issues.

11.  In a 26 September 2002 letter, the applicant’s civilian doctor stated that the applicant was under his care and, due to her anemic condition, she was advised to refrain from engaging in strenuous exercises until her condition was corrected.

12.  In a 4 October 2002 memorandum, the Deputy Chief of Staff, Personnel (DCSPER), VIARNG, acknowledged receipt of the civilian doctor’s note, which was submitted to the applicant’s unit commander.  It was requested that the Deputy State Surgeon be allowed to contact her civilian doctor for further clarification on her condition.

13.  In a 29 October 2002 memorandum, the Deputy State Surgeon reiterated the civilian doctor’s recommendation as stated in the note, dated 26 September 2002.  The civilian doctor also recommended that an office visit by the applicant should be done as soon as possible before he could put in writing further clarification of her condition, type of corrective measure(s), and length of time for recovery.

14.  The applicant’s Hematology Report administered on 13 December 2002 shows her hemoglobin level as 10.9 g/d (reference range 12.0-16.0).  

15.  In a 18 December 2002 letter, the applicant’s civilian doctor stated the applicant was under his care and due to her medical condition, she should only be allowed to walk and avoid any other exercises until after the medical condition was corrected.

16.  In 3 January 2003 memorandum from the DCSPER, Subject: Extension of Enlistment - SFC [applicant’s name], the DCSPER indicates that this office had reviewed information from the unit and the applicant’s medical records, and found no basis to extend the applicant beyond her current ETS date of “15 January 2003” unless she met the reenlistment requirements.  

17.  On 10 January 2003, the applicant was counseled on meeting the requirements for reenlistment.  The unit commander informed the applicant that she must take and pass a current APFT in order to reenlist in the VIARNG.  The unit commander indicated the applicant had been given a 6-month extension to train and pass the APFT; however, she had not yet met the requirements.  The unit commander indicated that the applicant’s medical records had been reviewed by the Deputy State Surgeon’s Office and, despite the fact she had a medical condition, this condition was not in the line of duty.  Therefore, there was no basis to extend her beyond her current ETS date of “15 January 2003.”

18.  The applicant submitted an IG Action Request on 14 January 2003 for a determination on an approval of a medical profile to enable her to perform an APFT.  The IG’s response to the applicant’s request is not available.

19.  The applicant was discharged from the VIARNG on 15 January 2003 under the provisions of NGR 600-200, paragraph 8-27u and was transferred to the Retired Reserve on the following date.  She completed 29 years, 5 months, and 10 days total service for retired pay.

20.  In a 22 January 2003 letter, the civilian doctor indicated the applicant was well aware that surgery was needed to remove the fibroids causing the heavy bleeding.  The civilian doctor indicated that, after surgery, the applicant would require a recovery period of 8 weeks.

21.  On 6 February 2003 and 12 February 2003, the applicant submitted 
follow-up letters regarding her IG requests for a final official determination on her reenlistment in the VIARNG.  There is no record of responses from the IG regarding her follow-up requests.

22.  The applicant’s Army National Guard Retirement Points History Statement prepared on 10 October 2007 shows she completed 29 years, 5 months, and 10 days of creditable service for retired pay.  She had earned 40 inactive duty training (IDT) points during her last complete retirement year (ending 15 January 2003).

23.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau.  This office recommended that the applicant’s separation orders be amended to read “Separated from the ARNG effective 31 July 2003 and “placed on the retirement list effective 1 August 2003”; that she be issued a new NGB Form 22; and that her Retirement Point Accounting System (RPAS) record be corrected by giving her “seven months and ten days retirement points.”  The opinion states that there was no flagging action documenting the applicant’s APFT failure in the interactive Personnel Electronic Record Management System (iPERMS).  The opinion references Army Regulation 600-8-2 (Suspension of Favorable Personnel Action) (FLAGS), Army Regulation 635-200, and National Guard Regulation (NGR) 600-200, chapter 8.

24.  A copy of the advisory opinion was forwarded to the applicant.  On 4 October 2007, she concurred with the advisory opinion rendered in her case.  

25.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAGS)) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.  It states that failure to pass the APFT or failure to take the APFT within the required period requires a flag.  It also states that a flag for APFT failure blocks promotion, reenlistment, and extension of a Soldier.

26.  NGR 600-200, chapter 7 prescribes policies and procedures for extension, and immediate reenlistment.  Table 7-1 (Authorized Periods of Extension), Rule B applies to Soldiers with 10 years or more service (from Pay Entry Base Date (PEBD)) at ETS and states these Soldiers are authorized a period of extension of 3, 4, 5, or 6 years.

27.  NGR 600-200, Table 7-1, Rule J applies to Soldiers eligible to extend or immediately reenlist, but who failed to pass last APFT within 18 months of ETS and states these Soldiers are authorized a period of extension of whole months not to exceed a total of 6 months if waiver to extend is approved by the State Adjutant General.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was counseled in August 2002 regarding failure of her diagnostic APFT administered on 30 August 2002.  However, there is no evidence of record which indicates she received a flagging action for her APFT failure.  

2.  The applicant was discharged from the VIARNG on 15 January 2003 upon her “ETS.”  At that time, she had completed 29 years, 5 months, and 10 days of total service.  

3.  However, the applicant’s ETS of 15 January 2003 was the result of an extension completed on 30 June 2002.  On 31 July 2002, she extended yet again, for an additional 6 months and 15 days.  (It cannot be determined how the “15 days” were included as part of her extension, as it does not appear that the governing regulation provides for extensions of “days.”)  Even though the DA Form 4836 indicated her new ETS was “15 January 2003,” in fact her new ETS was 30 July 2003.  It appears she was erroneously discharged on 15 January 2003.  

4.  Since it appears the applicant was erroneously discharged on 15 January 2003, it would be equitable to correct her records to show she remained in the VIARNG until 30 July 2003, her actual ETS.  This would give the applicant        29 years, 11 months, and 25 days of service for pay as of 30 July 2003.

5.  Based upon an additional 6 months and 15 days of service in the ARNG,        it would be appropriate to show that the applicant earned 20 IDT points and        8 membership points during retirement year beginning 16 January 2003 and ending at her discharge from the ARNG as of 30 July 2003.

6.  Counsel’s request that an enlistment extension be approved to allow the applicant to complete 30 years of creditable service for retirement purposes is noted.  However, as a senior noncommissioned officer, the applicant should have been aware at the time of her extension on 31 July 2002 that an extension for 6 months and 15 days was not a sufficient period to allow her to complete a full 30 years of service.  

7.  The governing regulation does not guarantee a “right” to reenlistment or extension or state that reenlistment or extension may be denied only if the Soldier is flagged for APFT failure.  The regulation states Soldiers who have failed the APFT are authorized a period of extension of whole months if waiver to extend is approved by the State Adjutant General.  In determining whether the applicant should be granted an additional extension, whether of one whole month or of 5 days, the Board will not substitute its judgment for that of the State authorities who determined the applicant should not be granted an additional extension.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ___x_____  _x_______  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 the State Army National Guard records and all Department of the Army records of the individual concerned be corrected by:

	a.  voiding her discharge from the ARNG of 15 January 2003 and showing she remained in the VIARNG until 30 July 2003 and that she was transferred to the Retired Reserve effective 31 July 2003;

	b.  amending item 8b (Effective Date) on her NGB Form 22 to show the entry “2003 07 30”;

	c.  amending item 10(a) (Net Service This Period) on her NGB Form 22 to show the entry “05 06 15”;

	d.  amending item 10(d) (Total Service for Pay) on her NGB Form 22 to show the entry “29 11 25”; 

	e.  amending item 10(e) (Total Service For Retired Pay) on her NGB Form 22 to show the entry “29 11 25”; and

	f.  amending her RPAS statement to show she was credited with 20 retirement points for individual duty training and 8 membership points (28 total points for retirement pay) for the retirement year beginning 16 January 2003 and ending with her discharge from the ARNG on 30 July 2003.

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 she completed 30 years of service for retirement purposes.  




______________________
          CHAIRPERSON


INDEX

CASE ID
AR20060015770
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071030
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
135.0000
2.

3.

4.

5.

6.