RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 April 2008
	DOCKET NUMBER:  AR20070017156 


	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.


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	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, correction of her records to show she was transferred to the Retired Reserve.

2.  The applicant states that she was injured in the line of duty (LOD).  She states that it was ordered by the outgoing commander not to retire her from the Reserves pending an investigation for her LOD injury.  She states that her unit continued to extend her for approximately 3 years through the duration of the LOD investigation.  The investigation returned favorable to her in December 2005 and it showed she was injured in the LOD.  She continues to state that her unit extended her in order for her to attend the Medical Review Board but she was unable to attend the Medical Review Board due to deaths of family members in Hurricane Katrina.  She alleges that her unit informed Fort Lewis, Washington that she was not interested in attending the Medical Review Board.  Afterwards, her unit extended her again and explained that they could not get any appointments for the Medical Review Board.  She also alleges that her unit refused to extend her in November 2006.  Her unit indicated that they offered her a retirement; however, the unit indicated they could not extend her because her enlistment had expired and she was not eligible to attend the Medical Review Board.  She further alleges that her unit honorably discharged her without the offer of a retirement or resolution of the LOD injury.  

3.  The applicant provides a copy of her Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter); a statement from the Adjutant General at Fort Huachuca, Arizona, dated 28 December 2005; her discharge orders from the U.S. Army Reserve (USAR); a memorandum, Subject: Discharge from the United States Reserve, dated 7 January 2007; a letter, dated 8 February 2007, from the Assistant Chief of Staff, G-1, Headquarters, 91st Division (Training Support); her DD Form 4/1 (Enlistment/Reenlistment Document), dated 1 March 2002; and six DA Forms 4836 (Oath of Extension of Enlistment or Reenlistment).

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 9 June 1959.  She enlisted in the USAR on 6 August 1978 for a period of 6 years.  

2.  She reenlisted in the U.S. Army Reserve (USAR) on 24 March 1989.  

3.  She was promoted to staff sergeant (SSG) on 27 September 1991 in military occupational specialty (MOS) 31G (signal operations).  She was later reclassified into MOS 02L (saxophone player).

4.  The applicant’s service personnel records contain a Statement of Medical Examination and Duty Status, dated 30 July 2000.  This document shows the applicant had a history of left shoulder and left arm pain for a period of 2 months. 

5.  The applicant’s 20-Year Letter is dated 2 February 2001.

6.  The applicant reenlisted in the USAR on 1 March 2002 for a period of 3 years.

7.  In an 11 January 2003 memorandum, the Commander, 63rd Regional Support command was informed that the applicant was identified as having significant medical problems, which included continued back, neck and shoulder pains.  The memorandum indicated that the applicant had stated she had been in pain since April 2000 with occasional sharp radiating pains into her left shoulder and arm.  In addition, the memorandum indicated that the physician had stated the applicant’s pains were exacerbated by draping her saxophone around her neck.  It was requested that a Fitness for Duty Evaluation be completed in order to determine if the applicant met medical retention standards in accordance with Army Regulation 40-501, chapter 3.  

8.  Her service personnel records contain a print-out from the Medical Operational Data System, dated 8 January 2005, which shows the applicant was placed on physical profile on 1 December 2003 with a profile of 111121 and on 21 September 2004 with a profile of 344122.

9.  On 28 February 2005, the applicant signed an Oath of Extension of Enlistment or Reenlistment which extended her enlistment of 1 March 2002 for a period of 3 months under Rule M, Table 3-1, Army Regulation 140-111.  Her new ETS was 28 May 2005.

10.  On 20 May 2005, the applicant signed an Oath of Extension of Enlistment or Reenlistment which extended her enlistment of 1 March 2002 for a further period of 3 months under Rule M, Table 3-1, Army Regulation 140-111.  Her new ETS was 28 August 2005.

11.  On 25 August 2005, the applicant signed an Oath of Extension of Enlistment or Reenlistment which extended her enlistment of 1 March 2002 for a further period of 6 months under Rule T, Table 3-1, Army Regulation 140-111.  Her new ETS was 28 February 2006.

12.  On 28 December 2005, the applicant’s LOD investigation was approved.  The findings were in line of duty.  

13.  On 27 February 2006, the applicant signed an Oath of Extension of Enlistment or Reenlistment which extended her enlistment of 1 March 2002 for a further period of 3 months under Rule M, Table 3-1, Army Regulation 140-111.  Her new ETS was 28 May 2006.

14.  On 31 August 2006, the applicant signed an Oath of Extension of Enlistment or Reenlistment which extended her enlistment of 1 March 2002 for a further period of 3 months under Rule M, Table 3-1, Army Regulation 140-111.  Her new ETS was listed as “30 November 2006.”

15.  In a 7 January 2007 memorandum, the applicant was informed that her ETS date had occurred on 30 November 2006 and that she was not eligible for any additional extensions of her enlistment.  She was advised to contact the nearest Department of Veterans Affairs office if she had any outstanding concerns regarding her medical status.

16.  Headquarters, 91st Division (Training Support), Dublin, California Orders 
07-007-0001, dated 7 January 2007, honorably discharged the applicant from the USAR effective 30 November 2006.  The additional instructions state “Soldier was held beyond normal discharge date through no fault of the soldier.”

17.  In an 8 February 2007 letter, the Assistant Chief of Staff, G-1 of Headquarters, 91st Division (Training Support) stated the applicant had been offered the opportunity to retire on two separate occasions and she declined to do so each time.  The Assistant Chief of Staff, G-1 stated that transfer to the Retired Reserve was a voluntary action requiring the applicant’s signature.  As a result of her declination to retire, the only recourse was to discharge the applicant as of her ETS date of 30 November 2006.

18.  The applicant’s Chronological Statement of Retirement Points, dated 19 March 2008, shows she completed 22 years of qualifying service for retired pay at age 60.

19.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning and transferring USAR Soldiers.  In pertinent part, it states that assignment to the Retired Reserve is authorized in a number of circumstances but an eligible Soldier must request transfer.

20.  Army Regulation 140-111 (USAR Reenlistment Program), Table 3-1 lists the authorized reasons and periods of extensions.  Rule M states that a Soldier is not eligible for reenlistment for reasons cited in this regulation or other directives.  However, the disqualification is under adjudication pending a final determination, or may be waivable, and it is apparent the Soldier’s ETS will occur before adjudication or waiver processing can be finalized.  Rule T states that a Soldier, through no fault of his or her own, does not meet the eligibility criteria of table 
2-1, rule C (Education) or rule D (Medical).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged from the USAR on 30 November 2006 at her ETS.  

2.  There is no evidence of record which shows the applicant submitted written requests to be transferred to the Retired Reserve prior to her ETS in November 2006.  However, the reasons cited for all her extensions tend to confirm her contentions that she was waiting for the results of a Medical Review Board.  

3.  It would be appropriate as a matter of equity to void the applicant’s discharge of 30 November 2006 and correct her records to show she was transferred to the Retired Reserve.

BOARD VOTE:
x        x______  x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding her discharge orders effective 30 November 2006; and

	b.  transferring her to the Retired Reserve with an effective date of 30 November 2006.



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          CHAIRPERSON