IN THE CASE OF:	  

		BOARD DATE:	        02 OCTOBER 2008

		DOCKET NUMBER:  AR20080007981 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be entitled to an early Reserve retirement due to physical disability.

2.  The applicant states, in effect, that he was found medically unfit for retention, but was not issued a 15-year letter of retirement nor assigned to the Retired Reserve.  He applied for retirement effective 20 December 2007 and was denied.

3.  The applicant provides, in support of his application, a copy of his notification of medical unfitness; a copy of his Physical Evaluation Board (PEB); a letter of support for disability retirement; and copies of electronic mail traffic between the applicant and his unit.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a member of the U.S. Army Reserve.

2.  On 8 May 2004, Headquarters (HQ), 99th Regional Readiness Command (RRC), Coraopolis, Pennsylvania, notified the applicant that he was determined to be medically disqualified for retention.  He was afforded the options of (a) requesting reassignment to the Retired Reserve if otherwise eligible; (b) requesting an honorable discharge from the USAR; or (c) requesting review of his medical disqualification by a PEB.  He was given a suspense date of 31 June 2004 in which to indicate his option.

3.  On 22 June 2004, the applicant responded to his notification and requested an informal PEB to review his medical records for final determination of his medical fitness for retention.

4.  On 16 June 2005, HQ, 99th RRC, published Orders 05-167-00016, discharging the applicant from the USAR, to be effective 1 August 2005.

5.  On 7 July 2005, HQ, 99th RRC, revoked Orders 05-167-00016, discharging the applicant from the USAR, effective 1 August 2005.

6.  On 27 July 2005, the applicant underwent a Reserve Component non-duty related PEB.  Based on a review of his medical evidence in his record, the PEB concluded that his medical conditions (diabetes and chronic back pain) prevented satisfactory performance of duty in his grade and primary specialty.  He was advised that if he had more than 15 years, but less than 20 years of service creditable towards Reserve retirement, he may request early qualification for Reserve retired pay at age 60.  He was given 10 days upon receiving the PEB proceedings to indicate his concurrence or non-concurrence.

7.  On 4 August 2005, the applicant non-concurred with the finding of unfitness because he believed he was capable of performing his military duties satisfactorily despite his medically unacceptable condition and requested a formal hearing without personal appearance.  He indicated that he was employed as a military technician in the G-3 Section of the 99th RRC and performed identical duties in both his civilian and military position.  He requested retention, and in the alternative that his discharge be delayed until March 2006 so that he could complete his 20th year of service for non-regular retirement.  His chain of command supported his request for retention.

8.  E-mail traffic with the applicant's unit shows that on or about 24 August 2005 the Physical Disability Agency (PDA) requested the applicant provide additional medical documentation.  Apparently the applicant was scheduled for an appointment with his civilian doctor on 23 September 2005, and he had notified PDA that he would be submitting additional medical documentation after his medical appointment.  As of 20 October 2005, the applicant had not submitted the additional medical documentation as he indicated he would.  Since the applicant made no attempt to respond or resolve the issue, processing ceased and he was discharged.

9.  Orders 05-319-00367, HQ, 99th RRC, dated 15 November 2005, discharged the applicant from the USAR due to medical unfitness for retention, effective
1 August 2005.

10.  The applicant's Chronological Statement of Retirement Points shows that he had 19 years, 3 months, and 29 days of qualifying service for retirement as of
1 August 2005.

11.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U.S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications of membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was found medically unfit for retention in the USAR.  He underwent a Reserve Component non-duty related PEB on 25 July 2005.  He was notified on that date that the PEB found his medical conditions (diabetes and chronic back pain) prevented satisfactory performance of duty in his grade and primary specialty.  He was given 10 days in which to either concur or non-concur with the PEB.  He non-concurred on 4 August 2005, 10 days after initial notification.  The PDA apparently asked for additional medical evidence on or about 24 August 2005 because the applicant indicated that he was scheduled for a doctor's appointment on 23 September 2005.  Apparently the applicant never followed through in providing the additional medical documentation and he was subsequently discharged.  

2.  There is no error or impropriety in the applicant's discharge from the USAR.  Had he complied with PDA's request, there may have been a different outcome in his case.  However, his Chronological Statement of Retirement Points verifies that he had 19 years, 3 months, and 29 days of qualifying service for non-regular retirement.  Army regulations provide that a member of the Selected Reserve who no longer meets the qualifications of membership in the Selected Reserve solely because the member is unfit because of physical disability may be treated as having met the service and be provided with the notification required if he has completed at least 15 and less than 20 years of service.  Even though the applicant was remiss in following-up on his responsibilities, as a matter of equity, and because of the applicant's faithful and lengthy service, it would be in the interests of justice to correct the applicant's records as recommended below.



BOARD VOTE:

__XXX __  __XXX__  __XXX__   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.  revoking the applicant's 1 August 2005 discharge from the USAR;

	b.  showing that the applicant was transferred to the Retired Reserve effective 1 August 2005; and

	c.  issuing him a 15-Year Letter (Notification of Eligibility for Retired Pay at Age 60) certifying eligibility for non-regular retired benefits at age 60.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007981



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ABCMR Record of Proceedings (cont)                                         AR20080007981



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