BOARD DATE:	  March 9, 2010

		DOCKET NUMBER:  AR20090011282 


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, correction of her records to show she completed 20 years of active federal service (AFS).

2.  The applicant states, in effect, that her records should be corrected to show she completed 20 years of AFS.  She also states that she was improperly assigned to the wrong duty stations because the U.S. Army Human Resources Command-St. Louis was unaware of the policies for disabled Soldiers being retained.  She appeared before a medical evaluation board (MEBD) and a physical evaluation board (PEB) and requested continuance in the Active Guard Reserve (AGR) Program.  She was retained in the Army for continuation of AFS by the Surgeon General of the U.S. Army Human Resources Command-St. Louis on 31 October 2004.

3.  The applicant further states that her request for continuance in the AGR Program was approved and signed by the Command Surgeon, Walter Reed Army Medical Center, on 16 November 2004.  She was in an assignment in which she had to be boarded unnecessarily after she had completed a medical board 6 months prior.  She had to be boarded once again and then placed on the Temporary Disability Retirement List (TDRL).  In effect, she was unable to complete her 20 years of AFS.

4.  The applicant provides copies of her release from active duty orders, her 2006 DD Form 214 (Certificate of Release or Discharge from Active Duty), her DA Form 199 (PEB Proceedings), and her retirement orders in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she enlisted in the Army Delayed Entry Program (DEP) on 17 July 1980.  She enlisted in the Regular Army in pay grade E-1 on 7 August 1980 and was discharged from active duty (AD) in pay grade   E-4 on 7 March 1988.  Her DD Form 214 that shows she was credited with 7 years, 7 months, and 1 day of net active service and 20 days of total prior inactive service for her period in the DEP.

2.  The applicant enlisted in the USAR in pay grade E-4 on 8 March 1988 for 3 years.  She entered AD for special work (ADSW) on 28 April 1990 and was released on 12 September 1990, a period of 4 months and 15 days.  She entered ADSW on 6 May 1991 and was released on 30 August 1991, a period of 3 months and 25 days.  She entered ADSW on 21 January 1997 and was released on 18 July 1997, a period of 5 months and 28 days.  She entered ADSW on 19 November 1997 and was released on 3 April 1998, a period of 4 months and 15 days.  She entered ADSW on 11 May 1998 and was released from ADSW on 25 September 1998, a period of 4 months and 15 days.  Her combined periods of AD and ADSW total 10 years, 5 months, and 29 days of AFS.

3.  The applicant again entered AD on 22 August 1999.  She completed training and was awarded military occupational specialties (MOS) 75H (Personnel Service Specialist) (later converted into MOS 42A (Human Resources Specialist)).

4.  On 15 March 2002, the applicant was issued a permanent profile of 113111 due to back pain (sacroiliac joint dysfunction).  Her assignment limitations were no running, no jumping, no sit-ups, and no push-ups.  The profile determined that the medical condition did not require a change in the applicant's MOS and duty assignment.

5.  On 11 July 2002, an MOS/Medical Retention Board convened and considered the applicant's permanent 3 profile.  The board found the applicant's medical condition did not limit her from performing the tasks required of a 75H and recommended she be maintained in her current MOS.  The proceedings stated that the applicant felt she was able to perform the tasks required of her MOS in a worldwide field environment.

6.  On 28 August 2002, the applicant was released from AD for purpose of immediate reenlistment in the USAR and was ordered to AD in an AGR status for an AD commitment of 6 years.

7.  On 18 August 2004, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  An Army Reserve Personnel Command (ARPC) Form 249-2-E (Chronological Statement of Retirement Points), dated 19 August 2004, credits her with completion of 20 years and 1 day of qualifying service for nonregular retirement as of her retirement year ending 16 July 2004.

8.  On 16 November 2004, the U.S. Army Physical Disability Agency approved the applicant's request for continuation in the AGR Program as a disabled Soldier.

9.  On 1 February 2005, the applicant was issued a permanent profile of 323111 due to fibromyalgia syndrome, Reynaud's phenomena, chronic back/neck pain, and sacroiliac joint dysfunction.  The profile states that she needed an MEBD/
PEB.  Her assignment limitations were limiting work to 40 hours per week with a maximum of 8 hours daily with no more than 5 consecutive days of work, no organized physical training, no running, no jumping, no sit-ups, and no push-ups. 
It was recommended she have access, at her own expense, to chiropractic care. 
The profile determined that the applicant needed to be assigned to a non-deployable unit and should receive assignments commensurate with her physical capability for military duty.  It was also determined that she was able to function in her current MOS.

10.  On 13 May 2005, the applicant requested reassignment due to a lack of medical support provided by the medical treatment facility.  On 13 October 2005, she was assigned to the Medical Hold Detachment for an MEBD/PEB.  Her records do not contain copies of her medical board proceedings.

11.  The applicant was retired from AD in pay grade E-7 on 17 May 2006 and was placed on the TDRL.  She was issued a DD Form 214 crediting her with 6 years, 8 months, and 26 days of net active service for the period 1999 to 2006. Her total AFS at the time of her 2006 discharge amounted to 17 years, 2 months, and 25 days.

12.  On 29 October 2008, the applicant appeared with counsel before a formal PEB.  The PEB considered the applicant's condition of fibromyalgia for which she was placed on the TDRL in 2006.  The PEB determined the condition continued to be symptomatic despite multiple medications and considered stable for final rating purposes.  The PEB stated that the present PEB rating of 40 percent accurately reflected the current degree of severity of her condition.  The PEB found the applicant physically unfit and recommended a combined rating of 40 percent and permanent disability retirement.  On 5 November 2008, the applicant concurred with the findings and recommendation of the PEB and waived her right to a formal hearing.  She was permanently retired in pay grade E-7 on 21 November 2008.

13.  An ARPC Form 249-2-E, dated 24 February 2010, shows the applicant had completed 21 years, 10 months, and 2 days of qualifying years (active and inactive service) for retirement as of her retirement year ending 17 July 2008.

14.  The applicant will reach age 60 on 10 January 2018.

15.  Title 10, U.S. Code, section 1201(A), provides that an individual who has at least 20 years of AFS and who is unfit to perform the duties of his/her office, grade, rank, or rating because of physical disability of at least 30 percent may be retired with his/her retired pay computed under section 1401 of this title.

16.  Title 10, U.S. Code, section 3914, provides that a request for retirement may be submitted by an enlisted Soldier who has completed 20 years, but less than 30 years, of AFS in the U.S. Armed Forces.  Approval of the request for retirement will be at the discretion of the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her records should be corrected to show she completed 20 years of AFS has been noted.  

2.  The evidence of record shows the applicant completed 10 years, 5 months, 29 days of AFS as of 25 September 1998 with a combination of AD and ADSW service.  She again entered AD on 25 August 1999 and continued on AD in the AGR Program on 28 August 2002.  On 16 November 2004, she was approved for continuation in the AGR Program as a disabled Soldier.  

3.  In 2006, a PEB determined she had an unstable medical condition which could improve or increase in severity over a period of time and she was placed on the TDRL on 17 May 2006.  Her records do not contain copies of her medical board proceedings; however, she provided no evidence to show she argued at the time that she was fit for duty and should be retained on AD.  At the time she was placed on the TDRL she had completed 17 years, 2 months, and 25 days of AFS.  

4.  The evidence further shows that on 28 October 2008, a PEB determined her medical condition was stable for final rating purposes and she was awarded a disability rating of 40 percent and permanent disability retirement.  She concurred and was permanently retired on 21 November 2008.

5.  The applicant has failed to show with the evidence submitted with her request and with the evidence of record that her records should be corrected to show she completed 20 years AFS.  The evidence only shows she completed over 20 years of qualifying service, and she had already received her 20-year letter.

6.  There is also no evidence of record and the applicant has submitted none to show that she was improperly assigned to a wrong duty station as a disabled Solider and thus was unable to complete 20 years AFS.  The evidence shows that upon detection of her medical condition she approved for continuation in the AGR Program as a disabled Soldier and underwent appropriate medical processing.  She was placed on the TDRL and subsequently retired for permanent disability.  There is also no evidence of error or injustice related to her physical evaluation process and temporary and permanent disability retirement separations.

7.  In view of the foregoing, there is no basis for granting the applicant's 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.



      ___________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)                                         AR20090011282



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ABCMR Record of Proceedings (cont)                                         AR20090011282



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