IN THE CASE OF:	

		BOARD DATE:	17 September 2009 

		DOCKET NUMBER:  AR20090015480 


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, reconsideration of the Board's denial of his request for his records be corrected to 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.

2.  The applicant states, in effect, that he was not aware that his transfer to the Retired Reserve would result in his not accumulating the 3 years Time In Grade (TIG) required to be retired as a lieutenant colonel (LTC).  He implies that he would have delayed his transfer to the Retired Reserve if he was aware that the time spent in the Retired Reserve would not count towards the 3-year TIG required to retire as a LTC.  

3.  The applicant provides the ABCMR's prior proceedings in his case.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR20060009532 on 24 April 2007 and AR20090005340 on 25 August 2009.



2.  The applicant's statement that he was not aware that time spent in the Retired Reserve did not count towards his TIG as an LTC is new argument and requires the Board reconsider his request.

3.  The applicant's military records show that the applicant, a U.S. Army Reserve (USAR) officer, was promoted to LTC on 1 February 2002.  On 27 January 2004, while serving on a tour of active duty, he 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).  

4.  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).

5.  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.  

6.  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.  

7.  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. 

8.  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.  


9  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.  The effective date of transfer was the date of order, 22 December 2004.

10.  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.    

11.  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.  

12.  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.  




13.  During the processing of the Boards prior consideration 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.  

14.  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.  

15.  In the Board's first consideration of this case, the Board determined that based on the applicant being determined physically fit by a PEB, and the amended recommendation by the HRC-STL Command Surgeon, it would be in the interest of justice to correct the applicant's records to show he was voluntarily transferred to the Retired Reserve.

16.  As a result of the Board's approved recommendation, orders were issued voluntarily transferring the applicant to the Retired Reserve effective the date he was originally transferred to the Retired Reserve; 22 December 2004.

17.  Title 10, U.S. Code, Section 1370, states that In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years.

DISCUSSION AND CONCLUSIONS:

1.  In the Board's original consideration of the applicant's request, the Board concluded that since the applicant requested voluntary transfer to the Retired Reserve before the HRC-STL Command Surgeon determined that he was 


medically disqualified, it would be proper and equitable to correct the applicant's records to show that he was voluntarily transferred to the Retired Reserve.

2.  However, the Board did not consider the effective date of the applicant's transfer to the Retired Reserve since the applicant did not raise that issue.  In this regard, it is apparent that the applicant was misinformed on the requirements for being placed on the Retired List in his current grade.  Otherwise, he would have certainly have requested an effective date of transfer to the Retired Reserve of 1 February 2005, a date which would have given him the 3 years required to be placed on the Retired List as an LTC.

3.  Since the applicant's transfer to the Retired Reserve was based on his voluntary request and was not due to an operation of law, he was well within his rights to request a specific effective date for his transfer to the Retired Reserve.

4.  In the Board's first consideration of this case it was the Board's intent to make the applicant as whole as possible.  Therefore, it would be in keeping with the Board's original decision and in the interest of justice to now correct the applicant's effective date of transfer to the Retired Reserve to 1 February 2005.

5.  There is no basis, and it would serve no useful purpose, to correct the applicant's records to show his effective date of transfer to the Retired Reserve as the date of the Board's first consideration of his case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____x____  ___x_____  ___x_____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20060009532, dated 24 April 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was voluntarily transferred to the Retired Reserve effective 1 February 2005.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing he was transferred to the Retired Reserve effective 23 May 2007.




      _______ _   _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)                                         AR20090015480





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ABCMR Record of Proceedings (cont)                                         AR20090015480



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