DOCKET NUMBER:  AR20090001960 


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, her honorable discharge of 30 November 1993, by reason of reduction in force (RIF), be changed to a medical discharge or early retirement under the Temporary Early Retirement Authority (TERA). 

2.  The applicant states, in effect, that the military doctors misdiagnosed her condition and after being found fit for duty, she was separated from the Army by reason of RIF based on a prior record of non-judicial punishment (NJP).  She claims to have received a total hysterectomy with healthy ovaries and a healthy uterus in August 1993.  Subsequent to the surgery, doctors determined that she had endometriosis on her bladder, which caused her to bleed.  The endometriosis was drained while she was recovering from the raw hysterectomy.  
3.  The applicant further states that due to the active endometriosis, she was unable to take the required hormones which caused her to suffer from major depression that lasted for nearly a year.  She states a Physical Evaluation Board (PEB) found she had a personality disorder when in fact she was diagnosed with major depression secondary to sarcoidosis.  She finally indicates her career was wrongfully terminated and that she was discharged based on outdated information contained in her military record and because of the negligence of the PEB and medical doctors.  She finally indicates that she is being treated at a Department of Veterans Affairs (DVA) hospital and was determined to be 
80 - 100 percent (%) disabled at the time of her discharge.


4.  The applicant provides a Medical Evaluation Board (MEB) Addendum, District of Columbia (DC) General Hospital Letter, dated 3 June 1993, and a 
self -authored statement in support of her claim.

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's military record shows that she enlisted in the Regular Army and entered active duty on 15 June 1978.  She was trained in, awarded, and served in military occupational specialty (MOS) 25Q (Graphics Documentation Specialist).

3.  On 31 January 1992, the applicant was notified that she was being barred from reenlistment under the Qualitative Management Program (QMP).  The applicant appealed that action, but her appeal was disapproved on 16 June 1992.

4.  The applicant's Official Military Personnel File (OMPF) contains an Enlisted Records and Evaluation Center (EREC) letter, Subject:  Department of the Army (DA) Imposed Bar to Reenlistment Under the QMP, dated 9 September 1992.  This letter shows that an exception to policy was approved to allow the applicant to change her separation date to 30 March 1993.

5.  Subsequent to her QMP notification, the applicant continued to be medically extended on active duty for medical treatment and processing through the Physical Disability Evaluation System (PDES) through 31 January 1994.     


6.  The applicant's record does not contain a separation packet containing all the facts and circumstances surrounding his PDES processing, or the final PEB proceedings.  The record does contain a letter from the Chief, Physical Disability Branch, United States Total Army Personnel Command (currently known as Army Human Resources Command (AHRC)), dated 13 September 1993, which shows a PEB determined that the applicant was physically fit to perform the duties of her office, grade, rank, and MOS in accordance with her physical profile and assignment limitations.  

7.  The record also contains a letter from the Sergeant Major of the applicant’s unit, dated 1 November 1993, in which the SGM states the applicant had been selected for QMP and had received three active duty extensions for medical reasons.  He also stated that the applicant had been evaluated by two separate PEBs, which both found her fit for duty.  He also indicated that a PEB liaison officer (PEBLO) from WRAMC had finally affirmed that the applicant was fit for duty on 28 October 1993.

8.  On 30 November 1993, the applicant was honorably discharged, in the rank of staff sergeant (SSG), after completing 15 years, 5 months, and 16 days of active military service.  The DD Form 214 she was issued at the time confirms she was separated under the provisions of paragraph 16-8, Army Regulation 635-200, by reason of "reduction in force” and that she received $13,122.90 in separation pay at the time of her discharge.

9.  The applicant provides a WRAMC MEB Addendum, dated 15 July 1993, which shows she was diagnosed and evaluated for major depression, histrionic personality traits, and psychosocial stressors.

10.  In 1993, Congress approved the use of a TERA as a drawdown tool.  This measure allowed the Army to offer early retirement to certain Soldiers who have at least 15, but not yet 20 years of service under the Voluntary Early Retirement Program (VERP).  Early retirement was not an entitlement and the Army offered it only to selected Soldiers in excess grades and skills.  The original authority for use of TERA expired at the end of Fiscal Year 1999, but was extended to December 2001.  The authority for TERA is codified in Title 10, U. S. Code, section 1293.

11.  Army Regulation 600-200, chapter 4, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to enhance quality of the career enlisted force, selectively retain the best qualified Soldiers to 30 years of active duty, deny reenlistment to nonprogressive and nonproductive Soldiers, and encourage Soldiers to maintain their eligibility for further service. 

12.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened by the DA promotion selection boards.  The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.  

13.  Army Regulation 635-200 (Enlisted Administrative Separations) prescribes the Army's enlisted administrative separation policy.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-8 provides for the early separation of soldiers due to reduction in force, strength limitations, or budgetary constraints.  It states, in pertinent part, that soldiers may be separated prior to expiration of enlistment of fulfillment of active duty obligation when authorization limitations, strength restrictions, or budgetary constraints require the Regular Army active duty enlisted force to be reduced in number.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she was misdiagnosed by military medical personnel and that she was erroneously discharged under the QMP was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record is void of a complete separation packet or PDES packet containing the specific facts and circumstances surrounding the applicant’s discharge processing and/or medical processing through the PDES.  However, it does contain a properly constituted DD Form 214 that confirms the applicant was separated, by reason of reduction in force, as a result of the imposition of a DA bar to reenlistment under the QMP. 

3.  The record contains documents confirming the applicant was medically extended on active duty for processing through the PDES and that she was ultimately found fit for duty by two separate PEBs.  Absent evidence to the contrary, it must be presumed the WRAMC MEB Addendum provided by the applicant which identifies the diagnosed conditions which were the basis for her processing through the PDES was available to and considered during the PEB reviews of her case.  Absent any evidence of record or compelling independent evidence provided by the applicant that shows any error or injustice related to this processing, it is concluded her PDES processing was accomplished in accordance with the applicable law and regulation, and that her rights were fully protected throughout her PDES processing.  

4.  The evidence of record further confirms the applicant was finally discharged as a result of her selection under the QMP after she had been afforded all appellate opportunities.  Therefore, it appears her discharge was accomplished in accordance with the applicable regulation.  Absent any evidence of error or injustice related to her QMP selection or her discharge processing, there is also an insufficient evidentiary basis to support a change to either the authority or reason for her discharge, or to grant her TERA retirement retoratively at this late date. 

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 or that would support amendment of the original Board decision in this case.   

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)                                         AR20090001960



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ABCMR Record of Proceedings (cont)                                         AR20090001960



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