IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090012734 


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, that his discharge of 20 August 1999 be voided and that he be transferred to the Retired Reserve.

2.  The applicant states, in effect, that he was a career Reservist and he was not informed at the time of his discharge that he could elect to be transferred to the Retired Reserve based on at least 15 qualifying years of service.  He goes on to state that he was not provided the counsel of a career counselor and was not aware that such an option existed.

3.  The applicant provides a copy of his Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) and a copy of a memorandum for physical evaluation board presidents.

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 that he was born on 1 August 1964 and enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 14 February 1983 and subsequently entered initial active duty for training (IADT) on 25 February 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  He was honorably released from IADT on 3 June 1983.

3.  The applicant's records further show that he was initially assigned to Company D, 330th Engineer Battalion, Worcester, Pennsylvania, and that he executed a 6-year reenlistment in the USAR in the rank/grade of specialist four/
E-4 on 27 January 1986.  He subsequently transferred to the 320th Military Police Company, St. Petersburg, Florida, on 30 October 1986.

4.  On 23 February 1992, the applicant underwent a periodic medical examination where he was diagnosed with Type I insulin-dependent diabetes.  However, the examining physician remarked on the applicant's Standard Form 88 (Report of Medical Examination) that the applicant was qualified for retention.

5.  On 9 July 1996, the applicant's immediate commander requested by memorandum that the applicant's health records be reviewed to determine if the applicant was healthy enough to be administered the Army Physical Fitness Test and retention in the USAR given his health condition at the time.

6.  On 22 February 1997, the applicant underwent a periodic medical examination where the examining physician noted that the applicant was diagnosed with Type I insulin-dependent diabetes.  The physician also placed the numeral 3 under the "P" (physical capacity or stamina) portion of the applicant's physical profile serial system factors indicating a permanent medical condition.

7.  On 23 February 1997, the command surgeon of the 81st Regional Readiness Command (RRC), Birmingham, Alabama, notified the applicant's immediate commander by memorandum that he reviewed the applicant's medical records and determined that the applicant did not have a medical condition upon enlistment.  He was diagnosed with diabetes mellitus in 1986 and at the time required insulin therapy for control.  The command surgeon also remarked that the applicant did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  The command surgeon recommended the applicant's separation in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations).  However, he noted that the applicant could request continuance in an active USAR status in accordance with Army Regulation 40-501.

8.  On 8 December 1997, the 73rd Field Hospital Unit Administrator, St. Petersburg, Florida, requested clarification regarding the applicant's retention in or separation from the USAR given the applicant's medical condition by memorandum addressed to the 332nd Medical Brigade Surgeon, Nashville, Tennessee.

9.  On 11 January 1998, the applicant was issued a temporary physical profile.  The profiling officer cited the applicant's diabetes mellitus and breathing difficulties.

10.  On 8 February 1998, the 332nd Medical Brigade Adjutant notified the 73rd Field Hospital Commander by memorandum that the applicant's medical records were incomplete and that upon receipt of further medical documents, the applicant should be referred to a medical evaluation board (MEBD).  He further noted that if the applicant's expiration of term of service date was prior to the MEBD convening date, the applicant would be extended for a period of 6 months.

11.  On 3 March 1998, the applicant was examined at Suncoast Medical Clinic, St. Petersburg, Florida.  The civilian doctor indicated that the applicant had a history of diabetes mellitus and that at the time his diabetic condition was controlled and within the normal limits.

12.  On 9 March 1998, the applicant's enlistment was extended for a period of 3 months.

13.  On 15 March 1998, the 332nd Medical Brigade Adjutant recommended the applicant's separation in accordance with Army Regulation 135-178 by memorandum addressed to the 73rd Field Hospital Commander.

14.  On 25 April 1998, the 73rd Field Hospital Commander notified the applicant by memorandum that after a review of his medical records, he was found to have a medical condition which rendered him medically disqualified for further retention in the Army.  The applicant was informed that his three options were to elect to be discharged, to be transferred to the Retired Reserve, or to request consideration for a waiver.  The applicant acknowledged receipt of this memorandum and requested consideration for a waiver of his disqualification.

15.  On 15 May 1998, the 73rd Field Hospital Unit Administrator notified the 332nd Medical Brigade Commander by memorandum that the applicant's term of service was extended by a period of 6 months while a waiver of his medical disqualification was being considered.

16.  On 8 November 1998, the applicant's term of service was again extended by a period of 6 months pending the scheduling of an MEBD.

17.  On 19 April 1999, the applicant's immediate commander submitted an evaluation statement in response to the applicant's request for continuation in the USAR.  The immediate commander stated that despite the applicant's performance to standards and positive qualities, his attendance at annual training events had the potential to add additional logistical challenges that non-medical units would have difficulty managing.  He further added that the applicant had selective enthusiasm and that there were many responsibilities he did not follow through on.  The immediate commander concluded that he did not support the applicant's retention in the USAR.

18.  On 5 May 1999, the applicant's immediate commander notified the applicant by memorandum that he was initiating separation action against him for medical unfitness.  He further recommended an honorable discharge.

19.  On 23 June 1999, the applicant's immediate commander requested the applicant's separation from the USAR by memorandum in accordance with paragraph 4-7 of Army Regulation 135-178.  He further recommended an honorable discharge.

20.  On 28 June 1999, the separation authority approved the request for separation.

21.  On 20 August 1999, Headquarters, 81st RRC, Birmingham, Alabama, published Orders 232-22 honorably discharging the applicant from the USAR effective 20 August 1999 in accordance with chapter 11 (Expiration of Service Obligations) of Army Regulation 135-178.  

22.  The applicant's ARPC Form 249-E shows he completed 15 years of qualifying service for non-regular retirement.

23.  A review of the applicant's records failed to show that the applicant was ever evaluated by an MEBD.

24.  Army Regulation 135-178 provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.

	a.  Chapter 4 of this regulation establishes policy and prescribes procedures for separation of enlisted Soldiers for the convenience of the government.  Paragraph 4-7 covers discharge of Soldiers who did not meet the medical fitness standards.  It states, in pertinent part, that separation authorities are authorized to discharge Soldiers who are not medically qualified.

	b.  Chapter 11 of this regulation establishes policy and prescribes procedures for separating members for expiration of the service obligation.  It states, in pertinent part, that on expiration of term of enlistment, reenlistment, or period of statutorily obligated service, the Soldier will be discharged by the appropriate separation authority.  No Soldier may be held in service beyond the normal expiration of term of service unless the expiration of term of service is extended by law.  A Soldier being discharged on expiration of enlistment, reenlistment, or fulfillment of service obligation will be awarded a character of service of honorable unless an uncharacterized description of service is required by law.

	c.  Chapter 12 of this regulation establishes policy and prescribes procedures for separating members for other reasons.  Paragraph 12-1 (Medically Unfit for Retention) provides that separation will be accomplished by separation authorities when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness (Army Regulation 40-501 or National Guard Regulation 40-3/National Guard Regulation 40-501) unless the Soldier requests and is granted a waiver under Army Regulation 40-501 or National Guard Regulation 40-501, as applicable, or is eligible for transfer to the Retired Reserve (Army Regulation 140-10).  Soldiers separated under this chapter will be awarded a character of service of honorable or under honorable conditions, unless an uncharacterized description of service is required.

25.  In August 1998, the Office of the Chief, Army Reserve (OCAR), established a process to refer Soldiers of the Reserve Component who are pending separation for medical disqualification into the Physical Disability Evaluation System.  The process was designed to give the Soldier with a non-duty related impairment the option of requesting a physical evaluation board (PEB) solely for the purpose of fitness determination but not a determination of eligibility for disability benefits.  OCAR noted that it is Department of Defense policy that Reserve Component members pending separation for medical disqualification are entitled to a fitness determination by each Service's PEB when requested by the Soldier.  These provisions were later incorporated into Army Regulation 
40-501 as noted above.

26.  Title 10, U.S. Code, section 12731a, was the temporary special retirement qualification authority.  This provision of law provided that, upon request, a member of the Selected Reserve could be transferred to the Retired Reserve if he or she (1) completed at least 15 but less than 20 years of qualifying service and (2) no longer met the qualifications for membership in the Selected Reserve solely because of unfitness due to physical disability.  This provision does not apply to any member whose disability resulted from intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention or was incurred during a period of unauthorized absence.  Title 10 was amended by the 106th Congress to extend the period of eligibility for this special retirement benefit from 1 October 1991 through 30 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not properly advised that he qualified for transfer to the Retired Reserve with a 15-year letter has been noted and appears to have merit.

2.  Although the applicant was notified in April 1998 that he had the option of being discharged, being transferred to the Retired Reserve, or requesting a waiver of his disqualification, once the applicant's choice of requesting a waiver of disqualification was denied, he should have again been offered the choice of being discharged or being transferred to the Retired Reserve.  However, it does not appear that such was the case.  At the time of his discharge he had 15 years of creditable service.  Although his orders indicate he was separated due to the expiration of his term of service, it is clear that he was separated because he was not medically qualified for retention.  He should have been afforded the opportunity to transfer to the Retired Reserve with a 15-year letter.

3.  Therefore, it appears that had the applicant been properly advised and processed at the time, he would have been transferred to the Retired Reserve with a 15-year letter.

4.  Accordingly, it would be in the interest of justice at this time to void his discharge of 20 August 1999, issue him a 15-year letter, and transfer him to the USAR Control Group (Retired) effective the same date.

5.  A Reserve Component Survivor Benefit Plan/Survivor Benefit Plan (RCSBP/SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

BOARD VOTE:

____X___  ____X___  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding his discharge from the USAR dated 20 August 1999, by transferring him to the USAR Control Group (Retired), and by issuing him a 15-year letter with entitlement to retired pay upon his application at age 60.




      ____________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)                                         AR20090012734



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ABCMR Record of Proceedings (cont)                                         AR20090012734



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