RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2007
      DOCKET NUMBER:  AR20070009240


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Ms. Marla J. N. Troup             |     |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, medical retirement.

2.  The applicant states, in effect, that in November 1994, he developed
and had surgery for a brain aneurysm.  He claims he made a quick recovery
and returned to military duty.  He states that because he was in a Field
Artillery unit, and got headaches from large concussion weapons, he was
transferred to a non-deployable unit.  He states that he transferred to the
51st Troop Command in June 1997, and everything was fine until November
2005, when his headaches started to get worse, as a result of a
mobilization test and orders that all enlisted personnel in the unit under
the rank of E-6 would have to transfer to new units.  It was then
discovered he was having small seizures since his brain aneurysm in 1994,
and he was left with brain damage and memory loss.  He claims that it was
at this time that he felt he could no longer perform his duties safely and
was a danger not only to himself, but also to others.  He states that he
was processed for discharge and was told he would receive a medical
discharge and would receive a monthly pay check.  It was then discovered
that he was discharged in a way that left him with a seizure disorder and
nothing else but an undisclosed retirement.  He claims a year later, he
decided to see if he could change his discharge to reflect the needed
income.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement, dated 17 May 2007; Doctor's Letter,
dated 25 May 1995; Physical Profiles (DA Forms 3349), dated 2 February
1997, 23 November 1998, and 30 April 1998; Doctor's Letter, dated 6 March
1996; Self-Authored Letter, dated 3 June 1997; Doctor's Letters, dated 2
April 1998; Doctor's Letter and Associated Medical Notes, dated 9 November
2005, 13 February 2006,
3 October 2006, and 30 November 2006; and Noncommissioned Officer
Evaluation Reports (NCOERs) ending in November 1994, November 1995,
November 1996, June 1997, November 1998, November 1999, November 2000, and
November 2001.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that on 24 May 2007, the Office of The
Adjutant General (OTAG), Massachusetts National Guard, notified the
applicant of his early qualification for eligibility for retired pay at age
60 in accordance with the National Defense Authorization Act for Fiscal
Year 1995, Public Law 103-337, Section 517.  The notification indicated
that eligibility was based on his completion of at least 15 years of
qualifying service and because he no longer met the qualification for
membership in the Selected Reserve solely because he was unfit because of a
physical disability.
2.  Massachusetts National Guard, OTAG Orders Number 157-8, dated 6 June
2006, directed the applicant's discharge from the Army National Guard
(ARNG) and his transfer to the Retired Reserve.  The Additional
Instructions of these orders confirm the applicant's Early Qualification
for Retired Pay at Age 60 based on his being medically disqualified.

3.  The National Guard Bureau (NGB) Form 22 issued to the applicant upon
his discharge from the ARNG on 6 June 2006, shows he held the rank of
sergeant and had completed a total of 17 years, 11 months and 10 days for
retired pay purposes.

4.  The applicant provides a Doctor's letter, dated 25 May 1995, which
indicated he was postoperative right temporal craniotomy with obliteration
of aneurysm.  It also indicated that he could return to his regular work
duties and there were no contraindications to his driving a motor vehicle.
He also provides a Doctor's letter, dated 6 March 1996, which indicates he
had surgery in November 1994, for a ruptured intracranial aneurysm and that
he was able to go back to his regular duties, but should stay away from
large concussion weapons since they caused bad headaches.  He further
provides a Doctor's letter, dated 2 April 1998, which indicated that he had
surgery for clipping of an aneurysm and that while he could do small arms
training, he could not shoot large equipment because it would give him a
headache.  He finally provides a Doctor's letter, dated
9 November 2005, which indicated he was being followed for headaches and
would see a neurologist in December of 2005.

5.  The applicant also provides five DA Forms 3349, dated between 29
January 1997 and 23 November 1998, the last of which indicated he had a
Permanent Three (P-3) profile for hearing based on his “post clipping of
aneurysm.”

6.  The applicant finally provides a Doctor's letter, dated 13 February
2006, with associated medical notes, which indicated the applicant received
a psychiatric evaluation due to anxiety and anxious depressed during an
annual physical examination.  The physician indicated that during the
examination, he discovered the applicant had less than expected retention
of digits, trouble with simple math, and with short term recall.  Based on
these findings, the physician discussed the applicant with a neurologist,
who had recently seen the applicant and noted the onset of a seizure
disorder in December 2005, and abnormalities in the applicant's MRI and
EEG, which the neurologist presumed were outcomes of an intracranial
hemorrhage in 1994. In light of his findings, the Doctor recommended the
applicant's discharge from the ARNG.

7.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers)
establishes procedures and policies and implements statutory authorities
regarding medical, dental, hospitalization, and disability benefits;
incapacitation compensation; and death benefits; as well as reporting
requirements on these entitlements for Reserve Component (RC) soldiers.
Paragraph 3-2 provides guidance on qualifying for Army disability benefits.
 It states, in pertinent part, that in order to be eligible for a
disability retirement, RC Soldiers must be disabled from injury, illness,
or disease incurred while serving in a duty or travel status.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and 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.
 Separation by reason of disability requires processing through the PDES.

9.  Chapter 8 of the disability regulation contains the rules and policies
for disability processing of Reserve Component (RC) soldiers on active
duty.  It states, in pertinent part, that a RC Soldier will be referred for
medical processing through the PDES when a commander or other proper
authority believes that Soldier is unable to perform the duties of his or
her office, grade, rank, or rating because of physical disability.  It
further stipulates that in order for Soldiers of the
RC to be compensated for disabilities incurred while performing duty for
30 days or less, there must be a determination made by the PEB that the
unfitting condition was the proximate result of performing duty.  Proximate
result establishes a casual relationship between the disability and the
required military duty.

10.  Title 10 of the United States Code, Section 12731 (10 USC 12731)
provides the age and service requirements for non-regular retired pay at
age 60.  It states, in pertinent part, that a RC Soldier who has completed
20 qualifying years of service is eligible to receive non-regular retired
pay at age 60.  Section 12731b provides a special rule for members with
physical disabilities not incurred in the line of duty. It states, in
pertinent part, that in the case of a member of the Selected Reserve of a
RC who no longer meets the qualifications for membership in the Selected
Reserve solely because the member is unfit because of physical disability,
the Secretary concerned may, for purposes of Section 12731 of this title,
determine to treat the member as having met the service requirements
necessary to qualify for non-regular retired pay at age 60 if they have
completed at least 15, and less than 20, years of qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, in order to qualify for medical retirement, an RC
Soldier must have suffered a medically disabling condition while in a
qualifying duty status.  The applicant’s military medical records show that
he was treated for an aneurysm and associated illnesses during his military
service, for which he was ultimately, medically disqualified from further
service.  However, there is no indication that he suffered a medically
disabling injury, illness or disease while in a qualifying duty status or
that he was processed through the PDES.

2.  The evidence does show that the applicant was found medically unfit for
further service, and was appropriately discharged from the ARNG and
transferred to the Retired Reserve as a result of this medical
disqualification.  It further shows that based on the legal authority
outlined in 10 USC 12731b, the applicant was issued a notification of
eligibility for retired pay at age 60 based on his completion of more than
15 years of qualifying service and his medical disqualification.  As a
result, he will be eligible to receive non-regular retired pay at age 60,
which is the appropriate remedy based on his medical disqualification.

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                 |AR20070009240                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2006/06/06                              |
|DISCHARGE AUTHORITY     |AR 135-178                              |
|DISCHARGE REASON        |Ret Res Med Disqual                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]