IN THE CASE OF:	  JACOBS, THOMAS E.

		BOARD DATE:	       25 AUGUST 2009

		DOCKET NUMBER:  AR20090005340 


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 his records be corrected in one of the three following ways:

	a.  change the effective date of his transfer to the Retired Reserve to 23 May 2007, the date the ABCMR changed the reason for his transfer from medical disqualification to voluntary;

	b.  transfer him back to the Individual Ready Reserve (IRR); or

	c.  bring him back to active Reserve status or active duty.

2.  The applicant reiterates the contentions he made to the ABCMR when the Board changed the reason for his transfer to the Retired Reserve.  Essentially, the applicant states that he was found physically fit by a physical evaluation board (PEB) while he was on an active duty tour.  However, when he was released from active duty he received a letter from the Command Surgeon's office informing him that he had been determined medically disqualified and providing him with the options of requesting discharge or transfer to the Retired Reserve.  

3.  Since he believed the reason for his transfer to the Retired Reserve to be an injustice, he submitted an application to the ABCMR.  While the ABCMR approved his request, the Board did not change the effective date of his transfer.

4.  The applicant explains that he requires his records to be corrected so he will be entitled to retired pay as a lieutenant colonel (LTC) instead of a major (he did not serve as a LTC for the 3 years required to be retired in grade).

5.  The applicant provides the ABCMR's prior proceeding in his original case and a copy of the orders generated as a result of the Board's approved recommendation.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that on 27 January 2004 the applicant, an LTC in the USAR serving on a tour of active duty, underwent a physical examination completed for medical board purposes.  The Report of Medical Examination (DD Form 2808) completed for this examination shows he was diagnosed with hypertension, seizure disorder, and obstructive sleep apnea (OSA).  

2.  On 3 July 2004, the applicant was honorably released from active duty and transferred to the US Army Reserve Control Group (Individual Mobilization Augmentee, or IMA).

3.  On 6 July 2004, a PEB convened in Washington D.C. to consider the applicant's case.  The PEB evaluated the applicant's diagnosed condition of OSA, which it determined was controllable through the use of a continuous positive airway device.  

4.  The PEB also determined his permanent physical profile permitted the applicant to perform all mandatory functional activities to include wearing a helmet and carrying and firing a rifle and completing the standard Army Physical Fitness Test (APFT).  The PEB also found the applicant's hypertension and nocturnal seizure disorder conditions were medically acceptable.  The PEB finally found the applicant physically fit and recommended he be returned to duty.  

5.  On 15 July 2004, the Chief, Operations Division, United States Army Physical Disability Agency (USAPDA), approved the PEB pertaining to the applicant.  This official confirmed the applicant was determined to be fit for active duty and to perform the duties of his office, grade, rank and MOS.  He also indicated the applicant was deployable within the limitations of his profile.  He concluded by indicating that if the applicant was not pending retirement, he should be returned to duty. 

6.  On 7 December 2004, the United States Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis) Command Surgeon notified HRC-St. Louis personnel officials that the applicant was unfit for continued military service.  The applicant's records are void of any medical documents used by the Command Surgeon's office to support this determination of unfitness.  

7  On 22 December 2004, HRC-St. Louis Orders Number C-12-427673 were issued directing the applicant's reassignment to the Retired Reserve based on his being medically disqualified for further USAR service.  

8.  In the processing of the original case on the applicant, an advisory opinion was obtained from the Operations Officer, Eastern Region, HRC-St. Louis.  This official indicated a comprehensive review of the documents on file in the applicant's packet had been completed.  This review showed that the applicant was initially found fit for duty by the PEB in July 2004; however, in September 2004; a review of the PEB findings and of additional documents was conducted by the HRC-St. Louis Command Surgeon's Office.  This resulted in a determination that the applicant was medically disqualified for retention in the United States Army Reserve (USAR).  The HRC-St. Louis official further indicated that as a result of the applicant's medical disqualification, he was provided an option letter allowing him to either elect discharge or transfer to the Retired Reserve.  In November 2004, the applicant elected transfer to the Retired Reserve, and orders were issued accomplishing this transfer on 22 December 2004.  This official recommends the orders transferring the applicant to the Retired Reserve remain in effect as they were initially issued.    

9.  On 20 January 2007, the applicant provided a rebuttal to the HRC-St. Louis advisory opinion.  He stated that he is requesting a copy of the additional medical documents presented to the Command Surgeon's Office that lead to the decision to disqualify him from further service.  He indicates that it is odd that he could have been cleared by the PEB in July 2004 and two months later a review of documents he has never seen resulted in the Command Surgeon's Office determination he was no longer qualified for continued service.  

10.  The applicant also stated that if there is a medical problem he is not aware of, he would like to receive the documentation showing such a condition so he can apply for benefits from the Department of Veterans Affairs (VA) as it must have developed during his last period of active duty service.  The applicant states that he does not believe there is such a condition and there has been some sort of miscommunication between someone and the Command Surgeon's Office.  He indicates that as outlined in his application, he believes a mistake has been made that resulted in an improper conclusion to his career, which prevents him from any further service during this time of war.  

11.  During the processing of this case, a member of the Board staff contacted the HRC-St. Louis Command Surgeon's office to clarify the processing procedures followed in the applicant's case.  These officials determined, after reviewing the PEB and USAPDA records, that further follow-up on the applicant's medical condition was required by their office.  As a result, given the applicant had requested voluntary transfer to the Retired Reserve through his chain of command in October 2004, it would be appropriate to grant the relief requested by the applicant to change the reason for his transfer to the Retired Reserve from Medically Disqualified to Voluntary.  

12.  Army Regulation 40-501 (Standards of Medical Fitness) contains guidance on medical fitness standards.  Paragraph 9-10 contains guidance on the disposition of medically unfit Reservists.  It states, in pertinent part, that normally Reservists who do not meet fitness standards will be transferred to the Retired Reserve or discharged from the USAR.  It further stipulates that Reservists with non-duty related medical conditions who are pending separation for not meeting medical retention standards may request referral to the PEB for a determination of fitness.  

DISCUSSION AND CONCLUSIONS:

1.  Since the Board does not have the medical records used by the HRC- St. Louis Command Surgeon to make its finding that the applicant was medically disqualified, a presumption of regularity must be applied; that what the Army did was correct.  The burden to prove otherwise rests with the applicant.  As such, it would not be appropriate to return the applicant to an active status in the USAR.

2.  As for the effective date of the applicant's transfer to the Retired Reserve, the applicant contends that he had no choice but to request transfer to the Retired Reserve since he was only afforded that option and the option of being discharged.  For final disposition of the applicant's medical disqualification, that would be correct.  However, the ABCMR corrected the applicant's records to show that he was transferred to the Retired Reserve based on his voluntary request since he had requested voluntary transfer to the Retired Reserve in October 2004, which was prior to the Command Surgeon finding him medically disqualified.

3.  Since the applicant's transfer to the Retired Reserve was based on his voluntary request, there is no basis for changing the effective date of his transfer to the Retired Reserve.

4.  While it is regrettable that the applicant lacks the time in grade required to retire as a LTC, an officer of the applicant's grade and years of service would have been expected to know that he required 3 years time in grade to retain his rank on the Retired List.  As such, it must be presumed that he had pressing issues which led to him requesting transfer to the Retired Reserve.  That he may now regret that choice is understandable.  However, it does not provide the basis for granting his request.

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.




      _______ _   _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)                                         AR20090005340





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ABCMR Record of Proceedings (cont)                                         AR20090005340



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