RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23 October 2007
	DOCKET NUMBER:  AR20070003323 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr.

Chairperson

Mr. Michael J. Flynn

Member

Mr. William Blakely

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 a Medical Evaluation Board (MEB) convene and determine her eligibility for a medical discharge.

2.  The applicant states that due to her medical condition, she requested termination of her Mississippi Army National Guard (MSARNG) enlistment on 4 November 2006.  On 13 November 2006, she discovered that she was being discharged from the MSARNG effective 7 December 2006.  She further states that on 13 November 2006, she requested an MEB and hand-carried her request to her higher headquarters on 15 November 2006.  Upon her return from leave on 3 December 2006, her commander faxed a separation order with an effective date of 7 December and an amendment to that order to show an effective date of 7 November 2006.  She also adds that on 23 December 2006, she received a response denying her request for an MEB due to lack of a physical profile and because she had already requested separation from the MSARNG.  She further adds that she has a permanent profile on both of her hands and another on both knees and that as of the date of this request she is still under a surgeon's care.  She concludes that her employment record speaks for itself and that all she wants is a fair chance at determining her eligibility for a medical discharge.

3.  The applicant provided the following documentary evidence in support of her application:

	a.  MSARNG Orders 311-813, dated 7 November 2006, placing her in the Retired Reserve.

	b.  Applicant's memorandum, dated 13 November 2006, requesting an MEB.

	c.  MSARNG Orders 320-815, dated 16 November 2006, amending the effective date of placing her in the Retired Reserve.

	d.  ARNG memorandum, dated 1 December 2006, denying her MEB request.

	e.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 7 November 2006.

	f.  MSARNG Orders 229-842, dated 17 August 2006, reducing her from Master Sergeant (MSG) to sergeant first class (SFC).

	g.  DA Form 705 (Army Physical Fitness Test Scorecard).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that, after a break in service, she enlisted in the MSARNG on 5 March 1982 and that she was awarded military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).  She was later awarded MOS 92Y (Unit Supply Specialist). 

2.  The applicant's records further show that she had a series of extensions and/or reenlistments in the ARNG, until she was honorably discharged from the ARNG and assigned to the Retired Reserve on 7 November 2006.

3.  An NGB Form 22 (Departments of the Army and Air Force-National Guard Bureau-Report of Separation and Record of Service), effective 7 November 2006, shows that the applicant was honorably separated and transferred to the Retired Reserve after completing 27 years for pay purposes.

4.  On 9 March 2000, the Mississippi Army National Guard, Jackson, Mississippi, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that she had completed the required years of service and would be eligible for retired pay upon application at age 60.  

5.  On 17 August 2006, the MSARNG, Jackson, Mississippi, published Orders Number 229-842, reducing the applicant from the grade of master sergeant (MSG)/E-8 to sergeant first class (SFC)/E-7 for misconduct with an effective date of 15 July 2006.

6.  On 4 November 2006, the applicant requested termination from the MSARNG due to what she stated as her medical conditions.   Her request was approved. 

7.  Mississippi Military Department, Jackson, Mississippi, Orders 311-813, dated 7 November 2006, show that the applicant was honorably discharged from the ARNG, in accordance with paragraph 8-27u of National Guard Regulation      600-200 (Enlisted Personnel Management), and assigned to the Retired Reserve effective 7 December 2006.

8.  On 13 November 2006, the applicant submitted a memorandum to her commander requesting a Medical Evaluation Board for evaluation of her medical records for a medical discharge.

9.  On 16 November 2006, the Mississippi Military Department, Jackson, Mississippi published Orders Number 320-815 amending the applicant's effective date of discharge and assignment to the Retired Reserve from 7 December 2006 to 7 November 2006.

10.  On 1 December 2006, Joint Forces Headquarters, Mississippi National Guard, denied the applicant's request for an MEB due to the applicant's requested discharge from the MSARNG and the applicant's lack of a permanent profile to substantiate convening an MEB.

11.  The applicant medical records show that she had a prior hearing profile in February 2003, but there is no indication that she received a permanent medical profile for her hands or knees.

12.  In an advisory opinion, dated 13 September 2007, obtained in the processing of this case, the Chief, Personnel Division, National Guard Bureau, Arlington, Virginia, recommended disapproval of the applicant's request to convene an MEB to determine her retirement status.  The Chief further added that the applicant neither had a permanent profile to substantiate her request nor was she qualified for a medical retirement since she had already retired with over 20 years of service.

13.  In her rebuttal statement, dated 27 September 2007, the applicant stated that she had extensive back surgery in February 2006 and was told by her personnel office that there was no paperwork required for her file.  She believes that an MEB was clearly warranted and that upon discovering that she had orders transferring her to the Retired Reserve, she personally walked through her request for an MEB.  She concluded with a plea for a fair chance of reviewing her medical records to determine her eligibility for a medical discharge.  She feels that it is an injustice when the higher headquarters can seal a Soldier's fate without oversight.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), governs the evaluation for physical fitness of Soldiers who may be unfit to their military duties because of physical disability.  This regulation applies to the Active Army, the Army National Guard and the U.S. Army Reserve.  Paragraph 3-2b of this regulation provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement creates a presumption that the soldier is fit.

15.  Department of Defense Instructions 1332.38 states that service members shall be considered to be pending retirement when an enlisted member is within 12 months of his retention control point (RCP) or expiration of active obligated service (EAOS) but will be eligible for retirement at his or her RCOP or EAOS. 

16.  Chapter 61, Title 10, U.S. Code provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The US Army Physical Disability Agency, under the operational control of the Commander, US Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense (DOD) Directive 1332.18 and Army Regulation 635-40.  
Soldiers enter the Physical Disability Evaluation System four ways:  

	a.  Referred by a Medical Evaluation Board (MEB).  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility (MTF) conducts a MEB to determine whether the Soldier meets the medical retention standards of AR 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a Physical Evaluation Board (PEB) to determine physical fitness under the policies and procedures of AR 635-40; 

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to a MEB/PEB is one of the actions the MMRB Convening Authority may direct; 

	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the MTF for evaluation.  If evaluation results in a MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 
	d.  Referred as a result of HQDA action.  The Commander, US Army Human Resources Command (USAHRC), upon recommendation of The Surgeon General, may refer a Soldier to the responsible MTF for medical evaluation as described in (3) above.  USAHRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that a Medical Evaluation Board (MEB) should convene and determine her eligibility for a medical discharge.

2.  The available evidence shows the applicant willingly requested separation from the MSARNG.  Upon learning that her request for separation was approved, she requested an MEB.  However, referral to the PDES is done through an established process that does not allow for self-referral.  At the time she requested separation, she was fully qualified for non-regular retirement. 

3.  There is no evidence in the applicant's records to indicate that she had a Permanent Profile and the applicant failed to provide sufficient evidence to show that convening a Medical Evaluation Board was warranted.  In view of the foregoing, the applicant is not entitled to relief

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__hof___  __mjf___  __wb____  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.



							Hubert O. Fry, Jr.
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070003323
SUFFIX

RECON

DATE BOARDED
20071023
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
145.0600
2.

3.

4.

5.

6.