IN THE CASE OF:	  

		BOARD DATE:	 25 September 2008 

		DOCKET NUMBER:  AR20080008588 


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, in effect, reconsideration of his request for correction of his records to show he has continuously served as a dual-status technician with the U.S. Army. 

2.  The applicant states, in effect, that he was a dual-status U.S. Army Reserve (USAR) technician serving in the 94th Regional Support Command (RSC) and was improperly terminated from his job.

     a. The applicant states that he was serving on a 3-year Active Guard Reserve (AGR) tour and deployed to the Middle East from 14 February 2003 to March 2004.  He also states that he intended to take 90 days transition leave prior to his expiration term of service (ETS).  He further states that he received a separation packet for Soldiers who were retiring, along with orders assigning him to the U.S. Army Transition Point, Fort Monmouth, New Jersey, for separation processing. He adds that he was not provided instructions on the procedures for a separation physical examination and was told he could complete the physical examination while he was in a leave status.
  
     b.  The applicant states that officials at the U.S. Army Transition Point said they were going to enter “Retired Reserve” in Item 9 (Command to Which Transferred) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  The applicant disagreed and explained that he was a technician and, after seeking medical attention and a profile for some physical issues, he had to return to a unit upon completion of his transition leave.  The applicant further states that the Army official entered “NA” in Item 9 of the DD Form 214, which has been the cause of much of his problem.
 
      c.  The applicant states that he returned to Headquarters, 94th RSC, where a physical examination was scheduled.  The applicant also states that he explained to Army officials that he needed to return to a unit, but was told he would have to await the outcome of his physical examination in order to reenlist.  The applicant adds that Army officials would not give him a copy of his physical examination until it was fully processed.  He then accessed the Medical Profile (MEDPROS) website and found he now had a Code “3” in his “PULHES” for his lower back; however, he still was not processed for reenlistment.  The applicant states that he believes his immediate supervisor (at the time) did not want him around, was not helpful to his situation, and should have provided him assistance.

     d.  The applicant states that in January 2007 he was told to reenter the USAR; however, he still needed a physical examination.  He also states that he sought the assistance of Senator Judd G____ and a U.S. Army Recruiter, but without any success.  Then, a surgeon at the Military Entrance Processing Station (MEPS) in Boston, Massachusetts advised the applicant that he needed a letter from his civilian doctor concerning his medical condition.  However, the Army surgeon subsequently determined that the applicant was permanently disqualified from reentering the Army based on the physical examination that he was administered in August 2004. 

     e.  The applicant states that there are many Soldiers serving in the Army with physical profiles and he should have been allowed to reenter the Army, especially since his injuries were received while at war.  He also states that he believes he was discriminated against, as well as neglected by Army officials. 

     f.  The applicant states that he has been unable to get a discharge or retirement order.  He also states that he could not be expected to know all the procedures for correctly getting a physical examination and reserve status after serving on active duty.  The applicant further states that his 13 years of service in the active Army and 13 years of service as an Army Reserve technician demonstrates that he would be serving until age 60.  He adds that he still has very much to contribute to the Reserve program.

3.  The applicant provides a 7-page self-authored statement, undated; DD Form 214, with an effective date of 12 September 2004; electronic mail (email) message, dated 22 December 2004, subject:  Military Technician Status;  email, dated 27 December 2004, subject:  Reserve Status; Medical Operational Data Systems (MODS) - Individual Medical Readiness Record, dated 10 January 2007; FEDS HEAL, The Federal Strategic Health Alliance, Memorandum for Command, dated 17 September 2004; subject:  Results of Retention Physical Examination; 94th RRC Newsbreak, dated March 2007, Maintaining conditions of employment (page 4); Headquarters, 94th Regional Readiness Command, Londonderry, New Hampshire, memorandum, undated, subject:  Notice of Proposed Removal; Applicant’s letter to Mr. S_______, dated 18 January 2007; Headquarters, 94th Regional Readiness Command, Ayer, Massachusetts, memorandum, dated 14 March 2007, subject:  Notice of Decision on Proposed Removal; Applicant’s letter to Dr. S_____, dated 20 February 2007; extract of Department of the Army Pamphlet 611-21, dated 31 March 1999 (pages 347, 348, and 810); New Boston Primary Care, New Boston, New Hampshire, letter dated 27 February 2007; email, dated 7 March 2007, subject:  Medical Waiver; and Army Board for Correction of Military Records, Docket Number AR20050013657, dated 11 May 2006.
	
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050013657, on 11 May 2006.

2.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth procedures for processing requests for correction of military records. Paragraph 2-15b of this Army regulation governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not previously been reconsidered.  If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR's original decision or after the ABCMR has already considered 1 request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.

3.  The staff of the ABCMR reviewed the applicant’s request for reconsideration and determined that his request for reconsideration was not received within
1 year of the ABCMR's original decision.  As a result, the applicant’s request for reconsideration does not satisfy the criteria outlined above.  However, although the applicant did not file within the time frame provided in the governing Army regulation, the ABCMR has elected to conduct a substantive review of this case for its determination of whether the new evidence is sufficient to demonstrate material error or injustice and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.
4.  The applicant’s military service records show that the applicant’s date of birth is 13 August 1960.  

5.  The applicant’s military service records show that he enlisted in the USAR on 11 November 1977 and entered active duty in the Regular Army (RA) on 18 July 1978.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 76C (Equipment Records and Parts Specialist).  The applicant was honorably released from active duty (REFRAD) on 13 July 1981 and transferred to the USAR with a Reserve obligation termination date of 10 November 1983.  The applicant extended his enlistment in the USAR Individual Ready Reserve (IRR) and entered active duty as a member of the AGR program on 29 August 1983.  He was honorably REFRAD on 27 November 1989 and transferred to the USAR Control Group (IRR), Army Reserve Personnel Center (ARPERCEN),
St. Louis, Missouri.

6.  The applicant’s military service records show that he continued to serve in an enlisted status in the USAR and he was promoted to Sergeant First Class (SFC)/ pay grade E-7, on 19 July 1995, in MOS 63B (Light Wheel Vehicle Mechanic).  

7.  The applicant’s military service records contain a copy of Headquarters,
U.S. Army Reserve Personnel Command, St. Louis, Missouri, memorandum, dated 10 December 1997, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  This document shows, in pertinent part, that the applicant was notified that, having completed the required years of service, he would be eligible for retired pay on application at age 60 in accordance with the provisions of Title 10, United States Code (USC), Chapter 1223.  This document also states, in pertinent part, that the applicant’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation on his part.

8.  The applicant’s military service records show that he reenlisted in the USAR, Troop Program Unit (TPU), on 13 September 1998 for a period of 6 years and was ordered to active duty in an AGR status on 29 April 2001.

9.  The applicant’s military service records contain a copy of Headquarters,
94th Regional Support Command, Ayer, Massachusetts, Order M-03-038-0086, dated 7 February 2003, that shows he was deployed in support of contingency operation Noble Eagle on 7 February 2003 for a period not to exceed 365 days.


10.  The applicant’s military service records contain a copy of a DA Form 4187 (Personnel Action), dated 29 March 2004, subject:  Request for Personnel Action - REFRAD Alignment.  This document shows that the applicant requested continuation in the AGR and realignment of his REFRAD date of 28 April 2004 with his expiration term of service (ETS) date of 12 September 2004.

11.  The applicant’s military service records contain a copy of Headquarters, U.S. Army Human Resources Command, St. Louis, Missouri, Orders R-03-10159A03, dated 20 April 2004, that show the applicant’s period of active duty commitment was changed from 3 years to 3 years, 4 months, and 14 days, and his REFRAD was changed to 12 September 2004.

12.  The applicant’s military service records contain a copy of Headquarters, U.S. Army Human Resources Command (USA-HRC), St. Louis, Missouri, Orders
C-06-490925, dated 17 June 2004, that show the applicant was attached to the U.S. Army Transition Point, Fort Monmouth, New Jersey, on 9 July 2004, for separation processing and his scheduled date of separation was 12 September 2004.  The additional instructions of these orders show, in pertinent part, that the applicant was directed to contact the Transition Point upon receipt of the orders and also to hand-carry his Health and Dental Records to the Transition Point.

13.  The applicant’s military service records contain a copy of Headquarters, USA-HRC, St. Louis, Missouri, Orders D-06-490147, dated 17 June 2004, that show the applicant was discharged from the USAR AGR Program, effective
12 September 2004.

14.  The applicant’s military service records contain a DD Form 214, with an effective date of 12 September 2004, and DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 29 September 2006, that show the applicant was honorably discharged on 12 September 2004 under the provisions of Army Regulation 635-200, Chapter 4, based on completion of required active service.  Item 18 (Remarks), as corrected by the DD Form 215, in pertinent part, shows that he served in Iraq from 11 April 2003 through 16 March 2004.  Item 27 (Separation Code) contains the entry “KBK” (i.e., voluntary discharge upon completion of required active service) and Item 27 (Reentry Code) contains the entry “1” (i.e., fully qualified for reenlistment).

15.  In support of his application, the applicant provides the following documents,

    a.  A 7-page self-authored statement, undated; DD Form 214, with an effective date of 12 September 2004; and ABCMR, Docket Number AR20050013657, dated 11 May 2006.  These 3 documents were previously introduced and considered in this Record of Proceedings.
    b.  Email message, dated 22 December 2004, subject:  Military Technician Status and email message, dated 27 December 2004, subject:  Reserve Status,  The email messages, in pertinent part, provide a summary of the applicant’s medical processing at the time of his separation processing, which the applicant also discussed in his 7-page self-authored statement.

    c.  Medical Operational Data Systems (MODS) - Individual Medical Readiness Record, dated 10 January 2007.  The Physical Assessment Data section, in pertinent part, shows that the applicant’s “PULHES” was “113221,” and the Current Physical Exam Date was 31 August 2004 and assessed as “Green.”  This document also shows, in pertinent part, in the Deployment Limitations section, “Non-Deployable Medical Profile” the entry “Green” and in “Limited Duty Status” the entry “Green.”

    d.  FEDS HEAL, The Federal Strategic Health Alliance, Memorandum for Command, dated 17 September 2004; subject:  Results of Retention Physical Examination.  This documentation shows that the applicant underwent a 39 and over physical examination at the Manchester Veterans Administration (VA) Medical Center, Manchester, New Hampshire, on 24 August 2004.  This documentation also shows, in pertinent part, that the applicant was found physically fit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) and that the results of the physical examination required the command surgeon to review and/or take appropriate action.

    e.  An extract from 94th RRC Newsbreak, March 2007, Maintaining conditions of employment (page 4), in which the applicant draws attention to the statement, “[e]nforcement of COE [conditions of employment] starts with the first line leader/ supervisor.  This person is best situated to understand the potential impact on an employee who fails to meet their COE.”  “Typically, the desire of the command is to help find a way for the employee to get back into an employable status.”

    f.  Headquarters, 94th Regional Readiness Command, Londonderry, New Hampshire, memorandum, undated, subject:  Notice of Proposed Removal.  This document shows that Mr. Daniel J_____, Human Resources Management and Employee Relations Supervisor, provided notice to the applicant, on 10 January 2007, of his proposal to remove the applicant from his position of Heavy Mobile Equipment Repair Inspector, WG-5803-10, and to terminate his Federal employment for failure to maintain a basic condition of employment 
(i.e., Selected Reserve membership).  This document also shows, in pertinent part, the applicant was discharged from the USAR, effective 12 September 2004, 


and no longer met his required condition of employment of maintaining active USAR membership.  This document also advised the applicant that he had the right to reply and submit (within 15 days from the receipt of the notice) any or all reasons why the proposed removal action should not be taken.

    g.  Applicant’s letter to Mr. S_______, dated 18 January 2007, that constitutes the applicant’s written reply to the proposed notice of removal.  This document shows that the applicant recounts the events relating to his medical examination at the time of his separation processing.  This document also shows, in pertinent part, that the applicant states, “I know now that the proper way to do this was to reenlist and go through the MEB [Medical Evaluation Board] process.” This document further shows that the applicant asked for an extension to continue trying to get back into the USAR in a TPU status.

    h.  Headquarters, 94th Regional Readiness Command, Ayer, Massachusetts, memorandum, dated 14 March 2007, subject:  Notice of Decision on Proposed Removal.  This document shows that Mr. Neil S_______, Supervisory Logistics Management Specialist, thoroughly reviewed the facts and circumstances outlined in the Notice of Proposed Removal, and the applicant’s oral replies to him and those in an email status report on 21 February 2007.  This document also shows that Mr. S________ decided to sustain the applicant’s removal from the position of Heavy Mobile Equipment Repair Inspector, WG-5803-10, and terminate his Federal employment, effective 31 March 2007, due to failure to maintain a basic condition of employment (i.e., Selected Reserve membership). This document also shows that the applicant acknowledged receipt of the Notice of Decision on Proposed Removal on 14 March 2007.

    i.  Applicant’s letter to Dr. S_____, dated 20 February 2007, and extract of DA Pamphlet 611-21, dated 31 March 1999 (pages 347, 348, and 810).  This documentation shows that the applicant recounts events relating to his medical examination at the time of his separation processing, documents the major duties and physical requirements of his position, and solicits a letter of support in his effort to retain his position in Federal employment.

    j.  New Boston Primary Care, New Boston, New Hampshire, letter, dated
27 February 2007, that shows Khalil S_____, Medical Doctor, indicated that the applicant was a patient under his medical care and he felt the applicant was able to return to perform his duty as an SFC in his MOS.

    k.  An email, dated 7 March 2007, subject:  Medical Waiver, that shows the Commander, U.S. Army Recruiting Battalion, New England, reviewed and disapproved the applicant’s request for medical waiver.

    l.  Army Board for Correction of Military Records, Docket Number AR20050013657, dated 11 May 2006, that was previously incorporated and considered in this Record of Proceedings.

16.  The applicant’s claim that he was improperly removed from his position in the Army Reserve Technician Program and wrongfully terminated from Federal employment is not a matter within the purview of the ABCMR.  Therefore, that matter will not be discussed further in this Record of Proceedings.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this Army regulation, provides, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

18.  AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 4 (Separation for Expiration of Service Obligation) provides, in pertinent part, that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.

19.  Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program), in effect at the time, implements Department of Defense policy governing retention, reenlistment eligibility, and service requirements in accordance with the United States Code.  Chapter 8 (Active Guard Reserve Administrative Procedures), Section III (Procedures to Establish Simultaneous Expiration Term of Service and Release from Active Duty Dates), paragraph 8-11 (Need for simultaneous expiration term of service and release from active duty), states that for sound personnel management, both the ETS and REFRAD dates of AGR personnel must be the same.  This section provides procedures to accomplish this goal.  Enlisted personnel maintain military status by executing an oath of enlistment (DD Form 4-series) for a specified term of service.  Voluntary order to active duty under the directives governing the AGR does not automatically extend an individual's enlistment or reenlistment agreement.  Upon ETS of an enlistment agreement, a Soldier will be discharged unless the enlistment has been extended or the Soldier has reenlisted.

20.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component Soldiers.  Chapter 2 provides eligibility criteria and, in pertinent part, states that in order to qualify for non-regular retirement, a member must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his or her qualifying service as a Reserve Component Soldier.  Paragraph 2-8 defines qualifying service and states, in pertinent part, that a Reserve Component Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.

21.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers.  It defines Ready Reserve Control Groups and the Selected Reserve, and detailed procedures are given for removing Soldiers from an active status.  It also gives procedures for interservice transfer and selective retention of unit Soldiers.  Chapter 6 (Transfer to and from the Retired Reserve), paragraph 6-1 (Eligibility), lists the conditions for Soldiers authorized assignment to the Retired Reserve and, in pertinent part, identifies Soldiers entitled to receive retired pay from the U.S. Armed Forces because of prior military service and Soldiers who have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.  This paragraph also states that eligible Soldiers must request transfer to the Retired Reserve.

22.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his request for correction of his records to show that he continued to serve in the USAR should be reconsidered because he was not properly advised on the medical examination procedures during his separation processing, which led to his discharge from the USAR and resulted in the loss of his Federal employment as a dual-status technician.


2.  The evidence of record shows the applicant voluntarily requested continuation in the AGR and alignment of his REFRAD date of 28 April 2004 with his ETS date of 12 September 2004.  The evidence of record also shows the applicant’s request was approved; the period of his active duty commitment was changed to 3 years, 4 months, and 14 days; and his REFRAD was changed to 12 September 2004 to coincide with his ETS date.  The evidence of record further shows the applicant was directed to contact the Transition Point upon receipt of the orders, to hand-carry his Health and Dental Records to the Transition Point, and that he report to the Transition Point on 9 July 2004.

3.  The applicant contends that he was not properly advised on the medical examination procedures during his separation processing.  It is noted that the applicant had completed more than 26 years of military service at the time of his discharge, on 12 September 2004.  The evidence of record shows that the applicant’s REFRAD orders provided instructions for him to contact the Transition Point upon receipt of the orders and to hand-carry his health and dental records to the Transition Point.  The evidence of record also shows that the applicant was provided this notice approximately 3 months prior to his REFRAD.

4.  The evidence of record shows that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In this regard, the evidence of record shows the applicant was eligible to reenlist in the USAR at the time he requested alignment of his REFRAD date with his ETS date and he remained eligible to reenlist through the date of his discharge on
12 September 2004.  However, there is no evidence of record to show that the applicant requested reenlistment in the USAR or that his request for reenlistment was disapproved.  In fact, the evidence of record shows, in a letter to Mr. S_____ on 18 January 2007, the applicant stated, “I know now that the proper way to do this was to reenlist and go through the MEB [Medical Evaluation Board] process.”

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  Since there is no evidence of record to show that the applicant's medical condition was medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical separation or retirement.  Moreover, based on the evidence of record, coupled with the applicant’s years of military service, there is insufficient evidence to support the applicant’s claim that he was not properly advised or aware of the medical examination procedures during his separation processing.


6.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 4, based on completion of required active service, was proper and equitable and in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the evidence of record shows that the authority, narrative reason for separation, SPD Code, and RE Code recorded on the applicant’s discharge are valid.  Therefore, the applicant is not entitled to reinstatement in the USAR.

7.  It is noted that the evidence of record confirms the applicant was notified by the Chief, Retired Activities Division, USAR Personnel Command, St. Louis, Missouri, on 10 December 1997, that he had completed the required years of service, and would be eligible for retired pay on application at age 60.  However, there is no evidence of record to show that the applicant requested a transfer to the USAR Retired Reserve on or after 12 September 2004.  Therefore, the applicant's discharge from the USAR AGR, effective 12 September 2004, was and remains valid.

8.  The applicant is advised that former members of the Reserve Components who are eligible to receive retired pay at age 60 under Title 10, United States Code, section 12731, but who have terminated their Reserve status are entitled to receive benefits provided under Chapter 54, Title 10, United States Code. Accordingly, the applicant should contact the local USAR AGR personnel service center/human resources office or State headquarters for additional information regarding his eligibility and authorization for benefits.  The applicant will need to provide a copy of his written notification of eligibility to receive retired pay as verification.  The applicant should also contact his nearest Retirement Services Officer (RSO) for information and assistance regarding retirement benefits.  A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  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.




      __________X____________
               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)                                         AR20080008588



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ABCMR Record of Proceedings (cont)                                         AR20080008588



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