IN THE CASE OF:	  

		BOARD DATE:	 3 November 2009 

		DOCKET NUMBER:  AR20090009944 


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 correction of his records to show he was retired instead of honorably discharged in 1991. 

2.  The applicant states that on 1 July 1991 he was honorably discharged as a chief warrant officer two (CW2) after 15 years and 22 days of active service and 3 years, 6 months, and 34 days of inactive service.  He adds that his last duty station was the White House Communications Agency and that he was discharged at Fort Myer, VA.  Prior to his discharge, he was diagnosed with vasovagal syncope, a condition that causes a Soldier to pass out during parades and it has nothing to do with bending the knees, and that he was not medically discharged for this condition.  He also adds that around the same time the military announced the 15-year retirement program.

3.  The applicant further states that in August 1996, he went to an Army recruiter and attempted to reenter the Army.  A physical examination was ordered and following a verbal approval from the El Paso Military Entrance Processing Station (MEPS) doctor, he received a letter from the MEPS disqualifying him for a hearing loss.  He then requested a waiver but was advised that the MEPS doctor disapproved the waiver.

4.  Following the 11 September 2001 events, he submitted his paperwork to reenter the military as a warrant officer and again he received authorization to report to the MEPs for an examination.  He continued with the examination and he was sent to a cardiologist, but he was later disqualified for a peripheral 

vascular disease.  He then appealed this decision to the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, but he was referred back to the MEPS.  He then solicited help from the Office of the Inspector General (IG) who referred him back to USAHRC and then on to the U.S. Military Personnel Command (USMEPCOM) where the Acting Deputy Command Surgeon endorsed his application and stated that he was technically qualified and required no additional training to perform his duties.  However, an email from the USAHRC doctor to the Acting Deputy Command Surgeon indicated that he reviewed the physical examination and determined that he (the applicant) had vasovagal syncope, bilateral femoral bruits, and he needed an ophthalmology examination.  He then underwent examinations at his own expense and using a private doctor who confirmed the vasovagal syncope.

5.   He forwarded the results of his examinations including a cardiac consult and was optimistic that USMEPCOM or the MEPS would finally approve a medical waiver.  However, by then, the MEPS had closed his file as "Medically Disqualified."  He also notes that the U.S. Army Recruiting Command (USAREC), Command Surgeon, forwarded a letter to the Office of the Surgeon General (OTSG) not recommending a medical waiver.  However, his personal physician indicated that he (the applicant) has a history of benign vasovagal syncope.

6.  He contends that if he had reentered the military in 2002, he would be retiring as a chief warrant officer five (CW5).  He previously served in Vietnam, Korea, Germany, and the White House.  He feels that he should not have been separated in 1991 but rather retired.  He also attempted to get his civilian employment to count toward his military time and to retire as a CW2 instead of a Federal civilian employee.

7.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 July 1991; copies of several emails, dated on various dates, from/to USMEPCOM, MEPS, USAREC, OTSG, and other medical officials; and copies of medical letters and/or memoranda, dated on different dates, in support of his request.

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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 3 July 1967.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 26L (Microwave Radar Repairman).  He was honorably released from active duty on 8 February 1970 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his Reserve obligation.

3.  The applicant's records also show he again enlisted in the RA on 24 January 1979.  He subsequently served in various positions within the continental United States and overseas and he was honorably discharged on 2 August 1983 in the rank/grade of sergeant (SGT)/E-5 for the purpose of accepting a warrant officer appointment.

4.  The applicant's records further show he was appointed as a warrant officer on 3 August 1983 and he executed an oath of office on the same date.  He was trained in and awarded MOS 256A (Signal Systems Maintenance Technician) and he was promoted to CW2 on 3 August 1985.

5.  The facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a properly-constituted DD Form 214 that shows he was honorably discharged on 1 July 1991 under the provisions of chapter 3 of Army Regulation 635-120 (Officer Resignations and Discharges) by reason of unqualified resignation.

6.  The DD Form 214 he was issued shows he completed 7 years, 10 months, and 29 days of active service during this period and he had 7 years, 1 month, and 15 days of prior active service, for a total of 15 years and 12 days of creditable active service.  He also had 3 years, 6 months, and 24 days of prior inactive service.  Additionally, item 18 (Remarks) of this form shows he received separation pay in the amount of $30,000.00.

7.  There is no indication in the available records that the applicant suffered from a medical condition that rendered him physically unfit to reasonably perform his duties or that would have led to the issuance of a physical profile or that would have warranted his entry into the Physical Disability Evaluation 

System.  Additionally, there is no indication that the applicant underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 

8.  The applicant submitted copies of several emails, dated on various dates, from/to USMEPCOM, MEPS, USAREC, OTSG, and other medical officials; copies of medical letters and/or memoranda, dated on different dates, that essentially show he requested to reenter military service on various occasions.  However, at the time of his attempt, USAREC, USMEPCOM, and OTSG found him medically disqualified to reenter military service.

9.  Army Regulation 635-120, in effect at the time, prescribed procedures whereby an officer on active duty may tender his or her resignation or be discharged.  Chapter 3 of that regulation provided that any officer of the active Army could tender a resignation under this chapter if he or she had fulfilled various service obligations.  

10.  Title 10, U.S. Code, section 1293, provides the legal authority for the retirement of warrant officers with twenty to thirty years of service.  It states that the Secretary concerned may, upon the warrant officer's request, retire a warrant officer of any Armed Force under his jurisdiction who has at least 20 years of active service.

11.  Public Law 102-484 provided the Secretary of the Army Temporary Early Retirement Authority (TERA) during the active force drawdown period by authorizing the application of Title 10, U.S. Code, section 1293 to warrant officers who had completed at least 15 but less than 20 years of service.  TERA was in effect during the active force drawdown period beginning on 23 October 1992 and ending on 31 December 2001.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was retired instead of honorably discharged in 1991. 

2.  The law which established the TERA specified that it was effective on 23 October 1992.  The applicant was discharged on 1 July 1991, almost 16 months prior to that date.  The applicant cannot be retired under statutory authority which did not yet exist.  

3.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, the applicant is not entitled to the requested relief.
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)                                         AR20090009944



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ABCMR Record of Proceedings (cont)                                         AR20090009944



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