IN THE CASE OF:	  

		BOARD DATE:	        09 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010423 


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, that she be medically retired, issued a      15-year letter and placed in the Retired Reserve with entitlement to Retired pay at age 60. 

2.  The applicant states, that she was unjustly discharged from the United States Army Reserve with 15 years of service when she should have been medically retired due to her disabilities. 

3.  The applicant provides no additional documents with her application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case 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.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was commissioned as a United States Army Reserve (USAR) second lieutenant in the Army Nurse Corps on 17 January 1981.

3.  She was promoted to the rank of captain on 19 July 1986 and to the rank of major on 19 July 1993. 

4.  A review of her records shows that she was assigned to the USAR Control Group (Individual Mobilization Augmentee) and was further assigned to perform her duties at Womack Army Medical Center at Fort Bragg, North Carolina.  A review of her last Officer Evaluation Report (OER) ending on 21 July 2000 indicates that she passed her Army Physical Fitness Test (APFT) and that she met the height and weight standards of Army Regulation 600-9.  

5.  On 23 February 2001, she was involuntarily discharged from the USAR due to being twice non-selected for promotion to the rank of lieutenant colonel.  She had 15 years of creditable service for Retired Pay purposes.

6.  A review of the applicant’s official records fails to show that the applicant had any physical disqualifications or that she ever requested consideration by a Non-Duty Related Physical Evaluation Board (NDR-PEB).  

7.  Army Regulation 40-501, Standards of Medical Fitness, provides in pertinent part, that normally, Reservists who do not meet the fitness standards outlined in chapter 3 of that regulation will be transferred to the Retired Reserve in accordance with Army Regulation 140-10 or discharged from the USAR under the provisions of Army Regulation 135-175 or Army Regulation 135-178.  They 
will be transferred to the Retired Reserve only if eligible and if they apply for it.  

8.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides in pertinent part, that all relevant evidence must be considered in evaluating the fitness of a Soldier.  Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence.  Thus if the preponderance of evidence indicates unfitness, a finding to that effect will be made.  This is particularly true if medical evidence establishes the fact that continued service would be harmful to the Soldier’s health or would prejudice the best interests of the Army.  Although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness.  It also provides 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 member may reasonably be expected to perform because of his or her office, rank, grade or rating. 

9.  Title 10 U.S. Code, section 12731a was a temporary special retirement qualification authority.  A revision, dated 5 October 1994, provided that, during the period 1 October 1991 through 30 September 1999 (later extended to 31 December 2001) a member of the Selected Reserve who has completed at least 15, and less than 20, years of qualifying service and no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, and upon the request of the member, may be transferred to the Retired Reserve.  Title 10, U.S. Code, section 12731a(a)(1) was amended to extend the Early Reserve Retirement Eligibility for Disabled Members to the period beginning on 23 October 1992 to Soldiers who attained 15 years of retirement eligibility after 1 October 1991.

10.  Title 10 U.S. Code, section 10143 defines the Selected Reserve.  The IMA is not considered part of the Selected Reserve.  Section 10147(a)(1) specifies the training that is required of a Selected Reserve Soldier.  That training is 48 scheduled drills/training periods and annual training/active duty training of 14 days annually.     

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that she was unfit to perform her military duties at the time of her discharge, she has provided no evidence with her application to support that contention or to describe what her actual disabilities are.   

2.  Additionally, the last OER she received in July 2000, just 6 months prior to her discharge indicates that she was able to perform the duties of her office, rank, grade or rating, which creates a presumption of fitness.

3.  Therefore, in the absence of evidence to show that she was medically unfit and should have been referred to a NDR-PEB, there appears to be no basis to grant her request.  

4.  Additionally, the applicant was not a member of the Selected Reserve and thus was not qualified to be issued a 15-year letter.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.                  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of her service in arms.



      ___        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)                                         AR20080010423





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ABCMR Record of Proceedings (cont)                                         AR20080010423



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