RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070005629 


	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. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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:

	a.  his 15 March 2007 discharge from the United States Army Reserve (USAR) be voided and that he be transferred to the Retired Reserve on that same date in lieu of being discharged; and

	b.  promotion from the grade of sergeant (SGT)/E-5 to the grade of staff sergeant (SSG)/E-6.

2.  The applicant states that he was discharged with no benefits after completing 20 years of service and that his SSG/E-6 packet was submitted through his unit in November 2003, but his name was not added to the promotion list.

3.  The applicant provides the following documentary evidence in support of his application: 

	a.  Headquarters, 99th Regional Readiness Command, Coraopolis, Pennsylvania, Orders 07-074-00047, dated 15 March 2007.

	b.  Letter, dated 20 May 2004, from the U.S. Army Physical Evaluation Board.

	c.  DA Form 199 [Physical Evaluation Board (PEB) Proceedings], dated 20 May 2004.

	d.  DA Form 5891-R (Acknowledgement of Counseling on Legal/Procedural Rights), dated 20 May 2004.

	e.  DA Form 4187 (Personnel Action), illegible date, Request for Early Retirement.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army on 29 November 1974 for a period of 3 years.   He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76Y (Armorer/Supply Specialist).  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 30 November 1977.

2.  After a break in service, he enlisted in the USAR on 27 April 1987 for a period of 6 years.  He subsequently executed a series of reenlistments and/or extensions in the USAR to include a 6-year reenlistment on 20 March 1993, a one-year extension on 7 February 1999, and a 3-year reenlistment on 5 November 2003.

3.  On 6 December 2003, the applicant was ordered to active duty for a period of 548 days, in support of Operation Iraqi Freedom, effective 10 December 2003.  However, he sustained an injury on 16 January 2004, during his mobilization phase at Fort Dix, New Jersey, when he was tripped and fell while playing soccer as part of unit physical activity. 

4.  The applicant's DA Form 2173, dated 20 September 2004, shows that he was examined at the 305th Medical Group, McGuire Air Force Base, New Jersey, for extremity and joint pain of the neck as well as shoulder and lower back pain, on 16 January 2004.  Item 15 (Details of Accident or History of Disease) of this form shows the entry "Soldier fell while playing soccer; he was kicked and tripped during physical training with the unit; he received an X-Ray and was administered medication for the pain."  This form further shows that the applicant's illness/injury was determined to be "IN LINE OF DUTY."

5.  The applicant's medical records are not available for review with this case.  There are no MEB-related documents available to the Board for review.

6.  On 20 May 2004, a PEB convened in Washington D.C., with the applicant present at the hearing and represented by counsel, and found the applicant's medical condition prevented him from performing his duties.  The PEB noted that he suffered from Type II Diabetes which was first diagnosed in 1995.  The PEB concluded that there was insufficient evidence to substantiate a condition that existed prior to service for which he was found unfit and that his condition was a result of natural progression rather than permanently aggravated by service.  Because his condition was not service incurred or permanently aggravated, he was rated under the DVA Schedule for Rating Disabilities (VASRD) code 7913 with no disability rating.  The PEB recommended the applicant be separated from the Army without disability benefits or compensation. 

7.  The PEB also noted that the applicant requested Continuation on Active Reserve (COAR), stating that his medical condition did not impair or limit the performance of his duties.  The PEB advised the applicant that in the event his COAR application was disapproved, he should request early qualification for USAR retired pay.  It also added that the applicant appeared to have accrued sufficient points for a 15th qualifying year.  The PEB advised the applicant that if he desired to apply for early qualification for USAR retired pay, he should submit a DA Form 4187 (Personnel Actions) through his chain of command and provide a copy of the DA Form 4187 to the PEB.  The PEB also stated that he could further request, upon issuance of a "15-year Letter", to be transferred to the Retired Reserve for the purpose of drawing Reserve retired pay at age 60, in lieu of being separated without any benefits.

8.  On 20 May 2004, the applicant was advised of the findings and recommendations of the PEB.  He did not respond regarding making an election to a formal PEB, concurrence or non-concurrence with the findings; or submitting a statement of rebuttal.

9.  On 26 November 2004, the applicant was honorably released from active duty in accordance with chapter 4, Army Regulation 635-200 (Personnel Separations) for completion of required active service. 

10.  On 15 March 2007, Headquarters, 99th Regional Readiness Command (RRC), Coraopolis, Pennsylvania, published Orders 07-074-00047, honorably discharging the applicant from the USAR, effective 15 March 2007.

11.  An advisory opinion, regarding the applicant’s 15-year letter, was obtained in the processing of this case on 23 May 2007.  The Personnel Actions Team Supervisor, 99th Regional Readiness Command stated that the applicant’s Chronological Statement of Retirement Points shows he completed 15 years, 11 months, and 27 days of qualifying military service for retirement, not 20 years as the applicant thought.  This is enough to have a fifteen year letter issued.  The Personnel Actions and Services Directorate, Transition and Separation Branch, Army Human Resources Command, St. Louis, Missouri, is responsible for issuing the retirement letter. The Team Leader added that the applicant’s PEB Proceedings, dated 20 May 2004, states specifically how the applicant could have been transferred to the Retired Reserve with 15 qualifying years as a result of his medical determination of unfitness for continued service.  The applicant did not request a transfer to the Retired Reserve.  His expiration of term of service was 4 November 2006.  The 99th RRC released his discharge orders effective 15 March 2007.  There is sufficient evidence that his intent was to be transferred to the Retired Reserve from his rebuttal on the DA Form 199-1, however, he never signed the form.  The 99th RRC had no recourse, at that time, other than to discharge him.  Once a 15 year letter is issued, the 99th RRC will void the discharge order and release a transfer to the Retired Reserve based on medical disqualification.  

12.  A second advisory opinion was obtained in the processing of this case on 3 July 2007.  The Program Manager, Transitions and Separations, Army Human Resources Command, St. Louis, Missouri, stated that the applicant’s promotion situation was beyond the province of his section.  He further concurred with the 99th RRC's opinion regarding the 15-year letter.  The applicant does not have 20 qualifying years.  For him to receive a 15-year letter, he must request it himself, submitting the request with the paperwork highlighted on the PEB Proceedings.  The 99th RRC must revoke his discharge order and assign him to the Retired Reserve as physically disqualified.  He must submit a DA Form 4187 (Personnel Actions Request) through the 99th RRC to Human Resources Command, St. Louis, Missouri, requesting the issuance of a 15-year letter.  With the DA Form 4187, he must submit his Chronological Statement of Retirement Points, the medical documentation and the PEB findings, and a copy of the order assigning him to the Retired Reserve.  There should also be a statement or option letter stating that it is his desire to go to the Retired Reserve rather than be discharged.  Upon review and pending all qualifications (which he appeared to have at the time), he would be issued an Early Qualification for Retired Pay at Age 60 (15-year Letter).

13.  Copies of both advisory opinions were forwarded to the applicant on 25 October 2007, but he did not respond.

14. The applicant's records do not indicate that he has requested his 15-year letter through the Commander, Army Human Resources Command, ATTN: Transitions and Separations, 1 Reserve way, St. Louis, Missouri  63132 Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates states that the Board will not consider any application if it determines that an applicant has not exhausted all administrative remedies available to him/her.  Since he has not exhausted his administrative remedy for the 15-year letter, the ABCMR cannot take any further action at this time.  The applicant may reapply, if necessary, after he has exhausted the administrative remedy described in the preceding paragraphs , including evidence of the denial of his request for administrative correction of his records.  We have enclosed a new DD Form 149, Application for Correction of Military Records, for his use in the event he decides to resubmit his request.  As a result, his request for the   15-year letter will not be discussed further in this Record of Proceedings.

15.  An advisory opinion was obtained, regarding his promotion to staff sergeant, in the processing of this case on 27 November 2007.  The Deputy Chief of Staff, G1, Headquarters, 99th Regional Readiness Command (RRC), Coraopolis, Pennsylvania, stated the applicant has never appeared on the Permanent Promotion Recommended List (PPRL) published by the 99th RRC for promotion to staff sergeant.  He also added that his staff searched through the PPRL published from November 2003 to the present but could not find the applicant’s name.  A search was also done of the promotion database which contains all Soldiers that were published on the 99th RRC’s PPRL from 1998 to the present.  The applicant’s name did not appear on the promotion database.  When approved board results are received, showing that the Soldier was recommended for promotion, then the Soldier’s data is entered on the promotion database.  The 99th RRC has never received approved board results showing that the applicant was recommended for promotion.  The Applicant was assigned to the 630th Transportation Company, a subordinate unit to the 332nd Ordnance Battalion, which was the promotion authority.  The 99th RRC contacted the 332nd Ordnance Battalion telephonically regarding the applicant’s promotion to staff sergeant, but the 332nd Ordnance Battalion does not have records of the promotion boards held at the time.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction) in effect at the time prescribed that the promotion board documents for those who did not attain recommended list status be filed by the promotion authority for two years and then destroyed.  The promotion authority no longer has the documents from that board.  In order for the applicant to be promoted to staff sergeant, he must be eligible for board consideration; his records must be reviewed by a properly convened promotion board; a majority of the voting members must recommend the applicant for promotion, and the applicant must meet the minimum number of promotion points, before he could be added to the PPRL. 

16.  A copy of this advisory opinion was forwarded to the applicant on 29 November 2007, but he did not respond.

17.  Title 10, USC, section 12731a (Temporary Special Retirement Qualification Authority), which became effective 5 October 1994, also specifies that a member of the Selected Reserve who has completed at least 15 years but less than 20 years of service may be entitled to temporary special retirement qualification when they no longer meet the qualifications for membership in the Selected Reserve solely because the member is unfit because of a physical disability, not due to misconduct, on or after 5 October 1994.  Under this provision, Soldiers who complete at least 15 but less than 20 years of qualifying service and are deemed medically disqualified for retention are eligible to receive retired pay at age 60.  The amount of retired pay is based on the total number of qualifying years of service at time of removal rather than the 20 years normally required.




18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of chapter 61, Title 10, United States Code and Department of Defense Directive (DODD) 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 4 states that the PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

19.  Army Regulation 140-158 prescribes policy and procedures governing the classification, advancement, promotion, reduction, and grade restoration of applicable USAR soldiers. Section III of chapter 3 of this regulation prescribes policy and procedures for promotion to SGT/E-5 and SSG/E-6.  It states, in pertinent part, that in order for a Soldier to be promoted to staff sergeant, he must be eligible for board consideration; his record must be reviewed by a properly convened promotion board; a majority of the voting members must recommend him/her for promotion; and the Soldier must meet the minimum number of promotion points, before he/she could be added to the PPRL. 

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's records and the applicant did not provide sufficient evidence to show that he was eligible for promotion board consideration; his records were reviewed by a properly convened promotion board; a majority of the voting members recommend him for promotion, or that he met the minimum number of promotion points to be added on the Permanent Promotion recommended List.  Therefore, he is not entitled to relief.

2.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that his disability was properly evaluated by the PEB, which was in compliance with law and regulation. He had the opportunity to concur or non-concur with the findings and recommendations, and with the decision to separate him.  Yet, he took no action.

3.  In view of the foregoing, the applicant is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__dkh___  __jrh___  __eem___  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.




							David K. Haasenritter
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.