RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 August 2007
	DOCKET NUMBER:  AR20070000794 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Mr. Michael J. Flynn

Chairperson

Mr. Larry W. Racster

Member

Mr. Donald W. Steenfott

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 that he be reinstated into the United States Army Reserve (USAR) Control Group (Reinforcement) so that he may continue to receive the Voluntary Separation Incentive (VSI) entitlement.

2.  The applicant states, in effect, that his VSI payments were stopped after he was discharged from both the Arkansas Army National Guard (ARARNG) and the USAR Control Group (Reinforcement) without an evaluation from a medical board.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), with the ending period 1 April 1998; a DD Form 
4/1 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 20 July 1998; Military Department of Arkansas, Office of the Adjutant General Order 010-001, dated 10 January 2005; U.S. Army Reserve Personnel Command Orders C-06-217114, dated 27 June 2002; a memorandum from Headquarters, 39th Brigade Combat Team, 8 June 2004; an Adjutant General of Arkansas (AG ARK) Form 4187 (Personnel Action – Request for Discharge), dated 10 November 2004; a memorandum from D Company, 3rd Battalion, 153rd Infantry (Rear), dated 30 September 2004; a DA Form 3349 (Physical Profile), dated 5 May 2004; and an entire enlistment packet, dated 24 April 2002. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ARARNG on 8 February 1980 and successfully completed basic training and advanced individual training (AIT).  He was awarded military occupational specialty 11B (Infantryman).  On 16 April 1985, he was honorably released from the ARARNG.  

2.  On 22 April 1985, he enlisted in Regular Army and successfully completed AIT. He was awarded military occupational specialty 63B (Light Vehicle Mechanic).  On 1 April 1998, he was released from active duty.   His DD Form 214 with the period ending 1 April 1998 shows he transferred to the USAR Individual Ready Reserve (IRR) under the Early Release Program VSI after completing 12 years, 11 months, and 10 days of creditable active service during that period.  He was to receive an annual VSI payment of $8283.36 for 26 years.

3.  On 20 July 1998, the applicant enlisted in the ARARNG.  He was honorably discharged from his ARNG status on 2 December 1999 and transferred to the USAR Control Group (Reinforcement).  On 2 April 2001, he reenlisted in the USAR and was released on 23 April 2002 for enlistment in the ARNG.

4.  On 24 April 2002, the applicant enlisted in the ARARNG for a 3 year term of service in MOS 11B.

5. On 11 August 2003, the applicant received surgery on his right foot.

6.  A DA Form 3349, dated 8 October 2003, shows the applicant was issued a temporary profile for "RIGHT RETROCALCANEAL EXOSTOSIS" [a benign bony growth on the heel] which expired on 8 January 2004.  There were no assignment limitations imposed by the physical profile precluding participation in any activities.

7.  By memorandum, dated 26 January 2004, the applicant was sent a 60 day notification letter that stated that in October 2003 at the State SRP [Soldier Readiness Processing] he was temporarily disqualified for mobilization for a medical condition.  Medical documents on file in this unit did not contain sufficient information to make an evaluation to return him to military duty.  

8.  The applicant was advised to bring in civilian medical records relating to his condition from an appropriate specialty physician.  Failure to provided requested documents would result in an administrative separation.

9.  A Willis-Knighton Health System letter, dated 8 April 2004, shows the applicant was under specialty treatment for calcaneal spur left [heel] and tendon right [heel].  The author stated "As of this date the condition of this patient's left foot has deteriorated.  Surgery has not been scheduled at this time." 

10.  On 19 April 2004, a Request for Determination of Physical and Medical Suitability was sent to the ARARNG State Surgeon Office, to determine if the applicant could continue military duty and possible deployment to a combat zone in his assigned MOS of 11B.

11.  A DA Form 3349, dated 5 May 2004, shows the applicant was issued a permanent profile of 112111 for "LEFT FOOT SPUR."  There were no assignment limitations imposed by the physical profile precluding participation in any activities.

12.  On 25 May 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  On 23 June 2004, he was released from active duty at the SRP and Mobilization Processing Station, Fort Hood, Texas, for a disqualifying medical condition (permanent profile).


13.  By memorandum (sent by certified mail), dated 27 July 2004, Subject: Notification policy for disqualified Soldiers, the applicant was notified that he was disqualified for active military duty for "Herniated disc L-4-L-5, left calcaneal spur, and S/p (status post) right retrocalcaneal estoscetomy."  The memorandum further stated if he was unable or unwilling to resolve his disqualifying issue within a reasonable amount of time, action would be taken to initiate his discharge from the ARARNG.

14.  He was further advised that he was required to provide a "path to remedy" showing he was actively pursuing a potential remedy to help resolve his disqualifying medical condition within 60 days and if not it could result in him being discharged from the ARARNG.

15.  The applicant provided his unit a Willis-Knighton Health System letter, dated 16 August 2004, authored by the applicant's physician.  The author stated that the applicant was under his care of treatment for calcaneal spur left [heel] and tendon right [heel]. The letter further stated "Patient was seen in my office on March 19, 2004.  I discussed conservative treatment and surgical resection of left heel with 5-6 weeks non-weight bearing.  Patient would like to treat conservatively at this time."

16.  By memorandum (sent by certified mail), dated 30 September 2004, the applicant was informed he had received instructions to provide a "path of remedy" within 60 days and that he had provided a letter from his doctor regarding the left [heel] spur and tendon right [heel].  The applicant was advised that he did not provide a written "path to remedy" within the required time.  He was further informed that the commander was initiating the process to discharge him from the ARARNG.

17.  A memorandum, dated 1 November 2004, Subject: Request for Determination of Physical and Medical Suitability, from the Commander, Troop Medical Clinic addressed to the applicant's commander, shows that the applicant's permanent profile was reviewed and that he was found fit to perform limited duty.

18.  An AG ARK Form 4187, dated 10 November 2004, shows that a request for discharge from the ARNG and Reserve of the Army was approved by the Rear Detachment Noncommissioned Officer (NCO), the Rear Detachment Commander, and the "MSC" Commander by reason of being medically unfit for retention.  It was noted that the applicant was notified of the action by certified mail and he did not challenge the medical separation process.  

19.  On 1 December 2004, the applicant was discharged from the ARNG and as a Reserve of the Army.  His NGB Form 22 (Report of Separation and Record of Service) with the ending period 1 December 2004 shows the reason for separation as failure to obtain required physical.

20.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau.  That office recommended disapproval to the applicant's request due to insufficient evidence.  The advisory opinion stated "He was discharged from the National Guard and ineligible to transfer to the IRR in accordance with (IAW) Army Regulation (AR) 135-178 
(10 July 2006)."  His discharge was not listed as meeting the IRR transfer eligibility criteria.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.

21.  In his rebuttal, the applicant states in effect, that he was receiving a VSI check for getting out of active duty early.  When the ARARNG discharged him they took him out of the USAR Control Group which in effect stopped his VSI payment.  He continues that the National Guard Bureau stated he did not have enough evidence in his case and that he did not obtain a physical in accordance with National Guard Regulation 600-200.  How was he to do a physical when he was never given the opportunity to have one done?

22.  The applicant continues that in 2003 he received surgery to his right foot and received physical therapy and was not able to drill.  Later that year his unit activated for deployment to Iraq and at the State deployment briefing he was disqualified for deployment and eventually was issued a permanent profile for his condition.  He was ordered to active duty and went to Fort Hood for deployment and again he was disqualified for deployment due to his medical condition and sent home. 

23.  He was told by his unit to get a second letter from his doctor.  He stated that he was not going to get another letter due to his doctor had already given three letters and they all stated the same thing.  The applicant states that he was under the impression that he would be reclassified into another MOS and not be discharged without having the opportunity to have a physical or go before a medical board. 

24.  The National Defense Authorization Act for Fiscal Year 1992 established voluntary incentive programs to support the Army drawdown.  The VSI was one of the monetary benefits associated with this incentive program.  Headquarters, Department of the Army message 202100Z December 1991 stated that Soldiers approved for VSI must be appointed, enlisted, or transferred to the Ready Reserve for the entire period they receive VSI annual payments.  Soldiers who receive VSI and who subsequently serve on active duty, reserve duty pay status, or inactive duty for training shall forfeit an amount of VSI payable for the same period equal to the amount of basic pay or compensation received.  VSI annual payments would be discontinued if the member was separated from the Ready Reserve unless the individual became ineligible to continue to serve due to medical or age limitations in which case the Soldier would be transferred to the Standby Reserve or the Retired Reserve.

25.  Army Regulation 135-178 (Enlisted Administrative Separations) paragraph 
1-22 states, in pertinent part, the purpose of the Mobilization Asset Transfer Program (MATP) is to ensure sufficient trained manpower is available in the IRR to meet the Army’s personnel requirements under conditions of full mobilization.  To retain mobilization assets, eligible and qualified Soldiers who have a remaining statutory or contractual military service obligation (MSO) are in, or transferred or reassigned, to the IRR to complete their statutory or contractual MSO, whichever expires later.  Soldiers who are not retained, transferred, or reassigned to the IRR under the separation procedures prescribed by this regulation will be discharged from the military service.  This policy applies only to ARNG and USAR Soldiers who are subject to separation processing under this regulation or for the reasons in NGR 600-200 corresponding to the reasons listed below and who meet the eligibility criteria listed in paragraph 1-23; (1) Disenrollment from Senior Reserve Officers’ Training Corps (SROTC) or an ROTC Scholarship Program; (2) ROTC cadet early release; (3) Pregnancy; (4) Entry level performance and conduct; (5) Unsatisfactory participation; (6) Secretarial plenary authority; and (7) Failure to meet body composition standards.  

26.  Army Regulation 135-178, paragraph 1-23a, provides that State military authorities are required to follow the procedures of National Guard Regulation 600-200 in processing ARNGUS Soldiers for discharge from the ARNGUS prior to expiration of their terms of service.  ARNGUS Soldiers who are discharged from the ARNG in accordance with National Guard Regulation 600-200 become members of the IRR unless they are concurrently discharged from the ARNGUS and the Reserve of the Army under the procedures set forth in this regulation.  An ARNGUS Soldier, upon separation from the ARNGUS for any of the reasons cited in paragraph 1-22b, is eligible for transfer to the IRR as a Reserve if he or she meets all of the following conditions: (1) The separation authority has determined the Soldier possesses the potential for useful service if ordered to AD under conditions of full mobilization; (2) The Soldier has completed initial entry training (IET) and has been awarded a military occupational specialty (MOS); (3) The Soldier has three or more months remaining on his or her statutory or contractual Reserve obligation; and (4) On separation from the ARNGUS, the Soldier’s service will be characterized as honorable or under honorable conditions, or the service is described as uncharacterized.

27.  Army Regulation 135-178 further states that a Soldier is ineligible for retention in or transfer/reassignment to the IRR or Standby Reserve (Active List) and will be separated from military service if he or she is processed for separation for any other reason than those cited in paragraph 1-22.  

28.  National Guard Regulation 600-200 (Enlisted Personnel Management) paragraph 8-26j (1) states, in pertinent part, if a commander suspects a Soldier may not be medically qualified for retention, he or she will direct a Soldier to present him or herself for a medical examination in accordance with Army Regulation 40-501 and National Guard Regulation 40-501.  If retention is not recommended, a request for discharge will be submitted.  Paragraph 8-27i states failure to obtain a required physical in accordance with Army Regulation 
40-501 and National Guard Regulation 40-501 is a reason for discharge.  The Soldier will be notified in writing of the requirement to obtain a physical, and given 90 days to comply with the requirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his VSI payment was stopped after he was discharged from both ARNG and the USAR.  The applicant's records show he was released from active duty in April 1998, under the VSI program.  It is true the applicant was to have been paid VSI for 26 years; however, he was required to remain in the Ready Reserve for the entire period he received VSI payments.  

2.  He enlisted in the ARARNG in April 2002.  In May 2004, he was ordered to active duty in support of Operation Iraqi Freedom and was released from active duty for a disqualifying medical condition.  He was advised by his unit in July 2004 to provide a current remedy to resolve his disqualifying medical condition.  The medical document he provided in response, dated August 2004, indicated he was seen by his doctor on 19 March 2004, who discussed conservative treatment and surgical resection, and the applicant had indicated he would like conservative treatment.  The document did not contain current remedies (i.e., what was being done as of August 2004) to resolve his medical condition.  

3.  The applicant even acknowledged, in his rebuttal to the advisory opinion, that he was not going to get another letter due to his doctor having already given three letters and they all stated the same thing.  Therefore, it appears action was taken to discharge him in December 2004 because he did not comply with his unit's request for up-to-date information on his medical condition.
4.  The applicant contended in his advisory opinion rebuttal that he was under the impression that he would be reclassified into another MOS and not be discharged without having the opportunity to have a physical or go before a medical board.  However, because he provided no medical evidence to show he was in compliance with his unit's request for a remedy to his current medical condition, it would not have been possible for his unit to determine if he needed to be reclassified or needed to be sent to a medical board.

5.  The applicant was warned in a 27 July 2004 memorandum that he must resolve his disqualifying issue or action would be taken to discharge him.  Since this issue was not resolved due to his not providing up-to-date information he could not be transferred to the IRR because the ARNG separation authority could not determine if he possessed the potential for useful service if mobilized.  It is noted that in June 2004 he was demobilized for having a disqualifying medical condition.  

6.  Even though the AG ARK Form 4187, dated 10 November 2004, approved by the "MSC" Commander, shows the applicant was medically unfit for retention, there is no documentation in the applicant's records that shows who made the determination that he was medically unfit for retention.  In fact, on 1 November 2004 the Commander, Troop Medical Clinic indicated that the applicant's permanent profile had been reviewed and that he was found fit to perform limited duty. 

7.  Unfortunately, because the applicant did not properly respond to the 27 July 2004 request for information that would have enabled his unit to resolve his disqualifying condition, there is insufficient evidence to show that he was in fact medically unfit for retention, which might have warranted his transfer to the Retired Reserve and reinstatement of his VSI, or to show that he was medically fit for retention (which might have warranted his transfer to the IRR and reinstatement of his VSI).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MJF __  __LWR  _  ___DWS_  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




____ Michael J. Flynn __
          CHAIRPERSON




INDEX

CASE ID
AR20070000794
SUFFIX

RECON

DATE BOARDED
14 AUGUST 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
128.0000.0000
2.

3.

4.

5.

6.