RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 December 2007
	DOCKET NUMBER:  AR20070006869 


	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. Richard T. Dunbar

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Jerome L. Pionk

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 her records be corrected to show she is entitled to a 15-year non-regular retirement based on her medical disqualification from the United States Army Reserve (USAR).  

2.  The applicant states that the difference between regular retirement and retirement with disability incurred on or aggravated by active duty was not adequately explained to her at the time of her separation.  She further states that she was discharged in October 2006 but her foot injuries and treatment for her feet began in 1989 and continued throughout her military service.  She concludes that this included treatment for back problems while on active duty. 

3.  The applicant provided the following documentation in support of her request:

	a.  DA Form 3349 (Physical Profile), dated 30 January 2006.

	b.  Memorandum, dated 16 February 2006, Notification of Medical Disqualification. 

	c.  U.S. Army Human Resources Command (HRC), St. Louis, Missouri, Orders, dated 28 February 2006, assigning the applicant to the Retired Reserve.

	d.  DA Form 199 [Physical Evaluation Board (PEB) Proceedings], dated 3 August 2006.

	e.  Memorandum, dated 31 August 2006, U.S. Army Physical Disability Agency, to Commander, U.S. Army Human Resources Command, regarding applicant's unfitness for duty.

	f.  Memorandum, dated 19 September 2006, U S. Army Human Resources Command to applicant, regarding her unfitness for duty.

	g.  Miscellaneous medical documents from applicant's medical records.

	h.  Letter, dated 29 December 2005, from the Department of Veteran's Affairs, regarding the applicant's overall medical condition.

	i.  Electronic mail (email) trail, on miscellaneous dates and provided separately on 29 October 2007, showing the climate the applicant was dealing with in her unit.

	j.  U.S. Army Human Resources Command (HRC), St. Louis, Missouri, Orders, dated 28 February 2006, revoking the applicant's assignment to the Retired Reserve; provided separately by the applicant on 9 November 2007.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's records to show she is entitled to a 15-year non-regular retirement. 

2.  Counsel states, in effect, that the applicant is entitled to a 15-year non-regular retirement. 

3.  Counsel did not provide any additional documentary evidence in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that she enlisted in the U.S. Air Force Reserve (AFRES) on 27 July 1984 and continuously served in that status until she was honorably discharged from the AFRES on 21 August 1999.

2.  On 15 September 2001, she enlisted in the U.S. Army Reserve (USAR) for a period of 6 years, in the rank of sergeant/pay grade E-5.  She was awarded military occupational specialty (MOS) 92F (Special Electronics Devices Repairer).

3.  On 15 April 2004, the U.S. Army Reserve Personnel Command, St. Louis, Missouri, published Orders Number C-04-310745 that voluntarily released the applicant from the U.S. Army Reserve Control Group (Reinforcement) and assigned her to the 454th Transportation Company (Medium Truck), Columbus, Ohio, effective 14 April 2003.

4.  On 18 January 2005, Headquarters, 88th Regional Readiness Command, Fort Snelling, Minnesota, published Orders Number 05-018-00050, releasing the applicant from her assignment to the 454th Transportation Company (Medium Truck), Columbus, Ohio, and assigning her to the U.S. Army Reserve Control group (Annual Training) effective 17 February 2005.  The Orders stated the reason as "Cogent Personal Reasons."



5.  On 25 February 2005, HRC, St. Louis, Missouri, published Orders Number   C-02-503329 releasing the applicant from the U.S. Army Reserve Control Group (Annual Training) for mandatory reasons and assigned her to U.S. Army Reserve Control Group (Reinforcement), effective 25 February 2005.

6.  On 19 December 2005, HRC, St. Louis, published Orders M-12-505403, ordering the applicant to active duty, not to exceed 545 days, in support of Operation Iraqi Freedom.  However, these Orders were revoked by HRC, St. Louis, Missouri, Orders Number M-12-505403R, dated 2 February 2006.

7.  On 30 January 2006, the applicant was issued a physical profile due to illness.  Item 1 (Medical Condition) of the applicant's DA Form 3349 shows that she had bilateral foot pain due to bilateral foot condition.

8.  On 16 February 2006, the applicant received a Notification of Medical Disqualification.  This document informed her that her medical condition disqualified her for retention in the active USAR.  It further informed her she had three options for disposition of her status based on her medical condition:  transfer to the Retired Reserve if eligible, discharge, or she could elect to be considered by a Non-Duty Physical Evaluation Board (PEB).  She acknowledged the notification of her medical disqualification for further retention in the USAR and selected to transfer to the Retired Reserve (which applied to those with 20 qualifying years of service and to VSI/SSB Recipients).

9.  On 28 February 2006, HRC, St Louis, Missouri, published Orders Number    C-02-605674 releasing the applicant from the USAR Control Group and transferred her to the Retired Reserve effective 28 February 2006.  The Orders stated the reason as "Medically Disqualified."  HRC, St Louis, Missouri, published Orders Number C-02-605674R, revoking the applicant's assignment to the Retired Reserve.

10.  The applicant's records show that on 14 April 2006, she left her Troop Program Unit (TPU) for voluntary reasons and was transferred to the Individual Ready Reserve (IRR).

11.  On 3 August 2006, an informal Non-Duty Related PEB convened at Fort Lewis, Washington, to evaluate the applicant.  The PEB concluded that the applicant's medical condition was "bilateral foot pain due to metatarsalgia bilateral; pes planus with painful bunion and osteoarthritis of the foot joints."  The PEB determined that the applicant was unable to perform the physical demands of her primary MOS or common Soldiers Tasks.  It stated that she had not responded to conservative therapy and that surgical treatment was a consideration, but not for the near future.  The Board found the applicant physically unfit and referred her case for disposition under Reserve Component Regulations.

12.  On 17 August 2006, after being informed of the findings and recommendations of the PEB, and after having received a full explanation of the results of the findings and recommendations and the legal rights pertaining thereto, the applicant concurred and waived a formal hearing of her case.  

13.  On 31 August 2006, U.S. Army Physical Disability Agency forwarded the PEB action to HRC, St. Louis, Missouri, for disposition.

14.  On 19 September 2006, HRC, St. Louis, Missouri, informed the applicant by memorandum that the PEB determined that she was unfit for duty and that she was permanently disqualified and must be separated from the USAR.

15.  On 18 October 2006, HRC St. Louis, Missouri, published Orders Number   D-10-624689 honorably discharging the applicant from the USAR, effective 19 October 2006, under the authority of Army Regulation 135-178 (Separation of Enlisted Personnel).

16.  The applicant submitted an email trail on 29 October 2007, describing what she called the command climate she was dealing with.  In an email, dated 28 October 2004, the applicant informed her unit administrator that she could not attend drill during that weekend because she "had been diagnosed with symptomatic bilateral bunions and symptomatic flat feet." 

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 for received 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she is entitled to a 15-year non-regular retirement based on her medical disqualification from the USAR.

2.  The evidence of record confirms that a properly constituted and conducted non-duty PEB found the applicant was physically unfit to perform her USAR duties, and she was appropriately separated from the USAR based on this medical disqualification.  

3.  There is no evidence in the applicant's records that her medical condition was incurred on or aggravated by active duty.  Additionally, there is no evidence that the disability retirement was not adequately explained to her at the time of her separation.

4.  The evidence of record confirms the applicant voluntarily transferred from her TPU to the IRR for personal reasons.  Evidence of records further confirms that she was not processed by the TPU for medical disqualification.  10 USC 12731b requires the Soldier to be a member of the Selected Reserve to qualify for a    15-year retirement.  As a result, there is insufficient evidence of any error or injustice related to her discharge from the USAR that would support granting the requested relief.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__rtd___  __jrm___  __jlp___  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.




							Richard T. Dunbar
______________________
          CHAIRPERSON



INDEX

CASE ID
AR20070006869
SUFFIX

RECON

DATE BOARDED
20071220YYYYMMDD
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
136.0000
2.
108.0000
3.

4.

5.

6.