IN THE CASE OF:	

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090008817 


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, a 15-year letter so that he may retire from the U.S. Army Reserve (USAR) at the age of 60.

2.  The applicant states, in effect, that he was advised by his unit's administrative-supply technician (AST) to transfer to the Individual Ready Reserve (IRR) because of his acid reflux disease [formally referred to as gastro-esophageal reflux disease (GERD)].  The applicant continues that he was told it would be difficult to provide him a special diet in a field environment or during annual training events.  He states that the AST provided him a copy of an extract from Title 10, U.S. Code for the Armed Forces and informed him that he would submit the appropriate documentation to have a 15-year letter issued to the applicant and filed in his personnel record maintained in St. Louis, Missouri.

3.  The applicant continues that the extract from Title 10, U.S. Code, showed that "Section 12731b stated that a member of the selected reserve who no longer meets the qualification for membership in the selected reserve solely because the member is unfit because of a physical disability may, for the purpose of section 1237 (age and service requirements) of this title, be treated as having met the service requirements and be provided with notification required if he has completed at least 15 years and less than 20 years of service."

4.  The applicant provides a self-authored statement, a Retirement Points Accounting System Summary Points Inquiry/Update, four pages extracted from his civilian medical record maintained by Billings Clinic, Billings, Montana, and two pages extracted from his civilian medical record maintained by St. Vincent Healthcare, Billings, Montana, as documentary evidence in support of this 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's military service records contain a DD Form 214 that shows his date of birth is 29 October 1949 and that he enlisted and entered active duty in the Regular Army on 31 January 1968.  This document shows that the applicant served in the Republic of Vietnam from 18 July 1968 through 13 July 1969.  This document also shows he was honorably released from active duty on 9 Novem-ber 1970 after completing 2 years, 9 months, and 9 days net active service and transferred to the USAR Control Group (Reinforcement).

3.  The applicant's record shows he enlisted in the USAR Control Group (Ready Reserve) on 10 October 1975 and served until he was released and transferred to the USAR Control Group (Reinforcement) on 12 September 1977.

4.  On 15 June 1980, the applicant was transferred to the USAR Control Group (Ready Reserve).

5.  The applicant's record contains a Standard Form 93 (Report of Medical History) completed by the applicant when he underwent a periodic medical examination on 2 March 1985.  In Item 8 (Statement of examinee's present health and medications currently used) of this form, the applicant stated "I am in good health and not taking any medication."  In Item 11 (Have you ever had or have you now) the applicant indicated that he had never experienced pain or pressure in his chest; frequent indigestion; or stomach, liver, or intestinal trouble.
In Items 20 and 21, the applicant indicated that he had never had any illness or injury other than those already noted and that he had not consulted or been treated by clinics, physicians, healers or practitioners within the past five years for other than minor illnesses.  The applicant certified that the information he supplied was true and complete to the best of his knowledge and authenticated this form with his signature.  This form does not show any indication that the applicant was suffering from acid reflux disease.

6.  The applicant's record also contains a Standard Form 88 (Report of Medical Examination) completed by a physician when the applicant underwent his periodic medical examination on 2 March 1985.  In the "Clinical Evaluation" portion of this form, the examining physician indicated that he detected no abnormalities in the applicant's lungs, chest, abdomen, viscera, endocrine system, or genito-urinary (GU) system.  As a result of this medical examination, the physician determined that the applicant was qualified for retention in the USAR.  This form does not show any indication that the applicant was suffering from acid reflux disease.

7.  The applicant's record contains a Standard Form 93 completed by the applicant when he underwent an enlistment medical examination on 28 March 1989.  In Item 8 of this form, the applicant stated he was in "good" health taking "no medication."  In Item 11 the applicant indicated that he had never experienced pain or pressure in his chest; frequent indigestion; or stomach, liver, or intestinal trouble.  In Items 20 and 21, the applicant indicated that he had never had any illness or injury other than those already noted and that he had not consulted or been treated by clinics, physicians, healers or practitioners within the past five years for other than minor illnesses.  The applicant certified that the information he supplied was true and complete to the best of his knowledge and authenticated this form with his signature.  This form does not show any indication that the applicant was suffering from acid reflux disease.

8.  The applicant's record also contains a Standard Form 88 completed by a physician when the applicant underwent his enlistment medical examination on 28 March 1989.  In the "Clinical Evaluation" portion of this form, the examining physician indicated that he detected no abnormalities in the applicant's lungs, chest, abdomen, viscera, endocrine system, or GU system.  As a result of this medical examination, the physician determined that the applicant was qualified for retention in the USAR.  This form does not show any indication that the applicant was suffering from acid reflux disease.

9.  Headquarters, 96th USAR Command, Fort Douglas, Utah, Order 104-17, dated 26 September 1990, shows the applicant was released from his USAR unit and assigned to the USAR Control Group (Reinforcement) due to an employment conflict, effective 26 September 1990.


10.  Item 4 (Assignment Considerations) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) is blank.  Item 22 (Physical Status) shows the applicant's final medical examination was conducted on 28 March 1989.  Item 27 (Remarks) is blank.  Item 33 (Date Reviewed) shows applicant's final review of this form was on 20 August 1990.  This form is devoid of any indication that the applicant had any assignment limitations.

11.  USAR Personnel Center (ARPERCEN), St. Louis, Missouri, Orders D-11-496692, dated 9 November 1994, show the applicant was honorably discharged from the USAR effective 9 November 1994.  The "Additional Instructions" portion of these orders instructed the applicant to return his Reserve Identification Card to ARPERCEN and advised him that since he no longer had any military status, his records would no longer be maintained by ARPERCEN.  The applicant was instructed to contact the National Personnel Records Center if he had any questions about his military records in the future.

12.  The applicant’s Total Army Personnel Data Base electronic record, accessible via the U.S. Army Human Resources Command (USA HRC), Integrated Web Services (IWS) portal contains, in pertinent part, an ARPC Form 249-2-E (Chronological Statement of Retirement Points) that shows he served in the Regular Army from 31 January 1968 through 9 November 1970.  He served in the USAR Control Group from 10 November 1970 through 30 January 1974 and had a break in service from 30 January 1974 through 9 October 1975.  This document also shows the applicant reentered the USAR on 10 October 1975 and continued to serve in the USAR through 9 November 1994.  At that time, he was credited with 2204 total retirement points and 16 years, 9 months, and 9 days of qualifying service for retirement.  This form also shows that the applicant did not any inactive duty points, extension course points, active duty points, or qualifying service for retirement after 9 November 1990.

13.  A review of the applicant’s military service records failed to show that the applicant was ever diagnosed with any unfitting medical condition, submitted a request under the provisions of the temporary special retirement qualification authority for retirement with at least 15 years of service, or that he was issued a Notification of Eligibility for Retired Pay at Age 60 (15 Year Letter) by Headquarters, USA HRC, St. Louis, Missouri.

14.  The applicant provides four pages extracted from his civilian medical record maintained by Billings Clinic, Billings, Montana, documenting eight visits to the clinic during the period 8 April 1985 through27 April 1993.  The applicant's attending physician rendered a statement of the applicant's condition on 28 January 1993 in which he noted that the applicant was complaining of abdominal pain.  The physician continued that the applicant had a history of peptic disease diagnosed in 1986 and treated with Tagamet.  Since then, he had been doing pretty well until a year ago when he began having some post prandial discomfort, more of a pressure sensation in the left upper quadrant.  He continued that it had gotten worse recently and had become more of a pain than a burning sensation which sometimes radiated a little bit more up into the chest.  The physician noted that the applicant had been taking Tagamet which he had left over with relief, but had run out recently.  The physician opined that the applicant probably had recurrent peptic disease.  He noted that the condition did not really bother the applicant at night, therefore, it did not really have the major characteristics of reflux.  The physician ordered an upper gastrointestinal (GI) test for the applicant and prescribed Pepcid in the meantime.  The GI test revealed the applicant had a large amount of reflux during the water siphon test and opined that most of his symptoms could have been due to chronic peptic disease.

15.  The applicant provides two pages extracted from his civilian medical record maintained by St. Vincent Healthcare, Billings, Montana.  

	a.  On 27 September 2001, the applicant was seen for epigastric pain.  Testing was conducted which revealed multiple episodes of significant spontaneous reflux when the applicant was observed swallowing barium.  The examining physician opined that the applicant suffered from mild decreased motility of the esophagus and a Hiatal hernia with fairly marked reflux. 

	b.  On 1 April 2005, the applicant was seen for abdominal pain, reflux, and epigastric pain.  Upper GI testing was conducted and the examining physician opined that the applicant's esophageal peristalsis was essentially normal, but noted that there was spontaneous reflux which occurred from the stomach to the mid esophagus.  The examining physician opined that these findings were essentially unchanged from 27 September 2001, but conceded that there may have been a slight change in the applicant's condition.

16.  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.

17.  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.

18.  Title 10, U.S. Code, section 12731, provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least 60 years of age; has performed at least 20 years of qualifying service; and having completed the service requirement prior to 5 October 1994, shall have performed the last 8 years of qualifying service while a member of a reserve component; or having completed the service requirement during the period beginning on 5 October 1994, shall have performed the last 6 years of qualifying service while a member of a reserve component.

19.  Title 10, U.S. Code, section 12731a, was the temporary special retirement qualification authority.  It provided that, beginning 23 October 1992 (emphasis added) through 30 September 1999 (later extended to 31 December 2001), a member of the Selected Reserve who had completed at least 15 years of qualifying service as of 1 October 1991, or who completed at least 15, but less than 20, years of qualifying service during the period 1 October 1991 through 31 December 2001, could, upon the request of the member, be transferred to the Retired Reserve.  The Secretary concerned could limit the applicability of this section to meet the needs of the Service.  This temporary special provision appeared in the National Defense Authorization Act for Fiscal Year 1993 (NDAA FY93).

20.  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 for 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 contends, in effect, that his records should be corrected to show that he was notified of his completion of 15 years of qualifying service in a 15-year letter so that he may retire from the U.S. Army Reserve (USAR) at the age of 60.

2.  Although the applicant provides documentation from civilian physicians showing that he sought treatment for symptoms of GERD, the evidence of record shows that during the applicant’s military medical examinations conducted on 2 March 1985 and 28 March 1989, he stated that he was in good health and did not indicate any history of or symptoms of GERD.  Why the applicant chose not to disclose his medical condition during his military medical examinations is unclear.

3.  The temporary special retirement qualification authority is clear in that a member of the Selected Reserve who no longer met the qualifications for membership in the Selected Reserve solely because the member was unfit because of physical disability could, for the purposes of section 12731 of Title 10, U.S. Code, 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.

4.  The applicant was reassigned from the Selected Reserve to the USAR Control Group (Reinforcement) on 26 September 1990, which was nearly four years prior to his honorable discharge from the USAR Control Group (Reinforcement) on 9 November 1994.  The applicant was not a member of the Selected Reserve at the time of his discharge; nor, was he discharged solely because he was unfit due to physical disability.  Therefore, the applicant did not qualify for early retirement under the temporary special retirement authority and is not entitled to correction of his records 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)                                         AR20090008817





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ABCMR Record of Proceedings (cont)                                         AR20090008817



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