IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100014910 


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 her earlier request to correct her records to show she was permanently medically retired.  She also requests, in effect, promotion consideration to major by a special selection board (SSB) and restoration of her Montgomery GI Bill (MGIB) benefits as new issues.

2.  She states she joined the Women's Army Corps on 31 January 1972 and was discharged on 1 November 1988 with a physical disability separation as determined by a physical evaluation board (PEB).  On 20 September 2008, she was notified by the U.S. Army Human Resources Command (HRC) to submit paperwork for military retirement from the U.S. Army Reserve (USAR).  She had not been notified by HRC that she had been assigned to the Individual Ready Reserve (IRR).  Therefore, she unknowingly had been assigned to the IRR for 1 year, 7 months, and 15 days and had not been earning retirement points credit. 
She should have been notified of this status change so she could have completed Army military correspondence courses for retirement points so the 1 year, 7 months, and 15 days could be added for military retirement purposes.

3.  She states she now has 18 years, 4 months, and 17 days of additional time with the military.  Since she has over 18 years of military service, she is in a "grandfather status" and is entitled to retention in the USAR until she accrues 20 qualifying years for full retirement pay under the provisions of Title 10, U.S. Code, chapter 1223.  She should be granted full retirement and credited with 20 qualifying years of Reserve service since HRC failed to properly notify her.  HRC should be held accountable for the additional time needed for her to qualify for retirement.

4.  The aforementioned retirement oversight by HRC also caused a possible error in her non-consideration for promotion to major.  Under an SSB this error can be corrected.  She had the required time as a captain and should have been considered for promotion to major.

5.  She further would like her MGIB status restored to reflect the additional time in service, thus adjusting her discharge retirement date.  This will allow her to use the benefits to complete her master's degree.

6.  She provides:

* Tab A - 1988 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Tab B - Chronological Statement of Retirement Points
* Tab C - State Employment Verification Record
* Tab D - Title 10, U.S. Code, section 12738
* Tab E - Title 10, U.S. Code, section 12371a
* Tab F - Title 10, U.S. Code, section 14303
* Tab G - Title 10, U.S. Code, section 14502
* Tab H - Army Reserve Non-regular Retirement Information Guide
* Tab I - Temporary Early Retirement Authority, 1992-2001

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC90-08550 on 5 June 1991.

2.  The new issues will also be considered by the Board with the evidence provided.

3.  The applicant's military records show she enlisted in the Regular Army on 31 January 1972.  She was honorably discharged for the purpose of immediate reenlistment on 15 November 1973 and reenlisted on 16 November 1973.  She was honorably discharged on 19 June 1977.

4.  She was appointed as a second lieutenant in the USAR on 20 June 1977 and entered active duty.  She was promoted to captain with a date of rank and effective date of 4 April 1981.

5.  On 17 February 1988, the applicant's commander was notified to advise the applicant of her required release from active duty not later than 1 September 1988 as a result of her twice non-selection for promotion to major.

6.  On 21 March 1988, she acknowledged notification of her release from active duty as a result of a second non-recommendation for promotion to major.

7.  On 12 April 1988, a medical evaluation board (MEB) convened and considered her diagnoses of polyarthralgia, tachyarryrhmias, mitral value prolapse, chronic fatigue, peripheral cyanosis, chronic cough, and pes planus.  The MEB recommended that she be referred to a PEB.  On 7 July 1988, she concurred with findings and recommendation of the MEB.

8.  On 19 July 1988, an informal PEB convened and considered her diagnosis of polyarthralgia – chronic migratory arthritis.  The PEB found the other medical diagnoses not unfitting and not ratable.  The PEB concluded her medical condition prevented satisfactory performance of duty of her grade and military occupational specialty.  The PEB recommended separation with severance pay in lieu of retirement and a combined rating of 20 percent.

9.  On 1 August 1988, she non-concurred with the findings and recommendation of the PEB and requested a formal hearing.

10.  In August 1988, it was directed she be retained on active duty until 1 November 1988 or completion of medical board processing, whichever came first.

11.  On 17 August 1988, a formal PEB convened and considered her diagnosis of polyarthralgia – chronic migratory arthritis.  The PEB concluded her medical conditions prevented satisfactory performance of duty as an ordnance officer in the grade of captain.  The PEB recommended separation with severance pay in lieu of retirement and a combined rating of 20 percent.

12.  On the same day, she stated she did not agree with the findings and recommendations of the PEB; however, she did not wish to submit a rebuttal.

13.  On 23 September 1988, she was issued orders discharging her from the USAR effective 1 November 1988.  The orders stated she was authorized disability severance pay in the grade of captain based on 16 years, 9 months, and 2 days of service.

14.  She was honorably discharged from active duty on 1 November 1988 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(3), for physical disability with severance pay.  She was credited with 11 years, 4 months, and 12 days of net active service.  She was also credited with 5 years, 4 months, and 19 days of total prior active service for a total of 16 years, 9 months, and 2 days of total service.

15.  Army Regulation 635-40, then in effect, established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provided for MEB's which were convened to document a Soldier's medical status and duty limitations insofar as duty was affected by the Soldier's status.  A decision was made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501(Standards of Medical Fitness), chapter 3.  If the MEB determined the Soldier did not meet retention standards, the board would recommend referral of the Soldier to a PEB.

16.  Army Regulation 635-40 also specified that PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It was a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who were referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

17.  Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), then in effect, prescribed the policies and procedures for the promotion of Reserve officers.  The regulation specified promotion consideration or reconsideration by an SSB could only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in that context was one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation further specified that only critical elements are a basis for consideration by an SSB based on material error.  Critical elements are military education, officer evaluation reports, and the Silver Star or higher award.

18.  Army Regulation 137-7 (Incentive Programs), then in effect, prescribed the policies and procedures for administration of the Reserve incentive programs.  Chapter 8 specified that the New GI Bill provided educational assistance to qualifying selected Reserve officers, warrant officers, and enlisted Soldiers.  A Soldier's entitlement to unused benefits under the bill would expire on the earlier of the following dates:  date completed a course of instruction required for award of a baccalaureate degree or at the end of a 10-year period beginning on the date of entitlement to the incentive.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in April 1988 an MEB referred the applicant to a PEB.  On 19 July 1988, an informal PEB found her unfit for polyarthralgia and recommended separation with severance pay.  On 1 August 1988, she did not concur with the PEB and requested a formal hearing.  On 17 August 1988, a formal PEB found her unfit and recommended separation with severance pay.  She was subsequently discharged from active duty on 1 November 1988.  There is no evidence she was reassigned to the IRR any time after 1 November 1988.

2.  In the course of the PEB proceedings, she requested and received a formal hearing.  The formal PEB was carried through to conclusion.  At the time she stated she did not agree with its findings and recommendation; however, she did not want to submit a rebuttal.  She knew, or should have known, that any disagreement she had would have been considered.

3.  There is no evidence of an error or injustice in her physical evaluation process for her condition or in the PEB's findings.  There is also no evidence she was precluded from offering any relevant material evidence in her case and she provides insufficient evidence to show her medical condition was not properly considered or rated.  Her contentions and the documents she submitted do not demonstrate error or injustice in her MEB or PEB processing or error or injustice in the disposition of her case.

4.  She failed to show with the evidence submitted and the evidence of record that she should have received a higher disability rating and retirement due to permanent physical disability.

5.  There is no evidence any of her other medical conditions rendered her unfit to perform her duties at the time, as they were found to be not unfitting and not ratable.  There is no evidence and she provided no evidence these medical conditions required medical separation processing at any time.

6.  Her contentions have been noted; however, the evidence shows she was timely considered for promotion to major and not selected.  As a result of her second non-selection, she was required to be released from active duty.  Due to her medical board processing she was retained on active duty beyond her scheduled release date.  In view of the circumstances in this case, she is not entitled to promotion consideration or reconsideration to major by an SSB.

7.  Because promotion boards are not permitted to disclose the reasons for non-selection for promotion, there is no record of why she twice failed to be selected for promotion to major.  Promotion and retention is keenly competitive and many officers will not be selected.  There is no indication her records contained material error or her non-selections were unjust, inequitable, or contrary to law.  Without evidence to show otherwise, it is concluded the applicant was properly considered for promotion to major.

8.  In accordance with regulatory guidance, entitlement to unused benefits under the GI Bill expires on the earlier of the following dates:  date awarded a baccalaureate degree or at the end of a 10-year period beginning on the date of entitlement to the incentive.  In view of the foregoing, there is no basis for granting her request for restoration of MGIB benefits for completion of a master's degree.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  In regard to the request for reconsideration, the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC90-08550, dated 5 June 1991.

2.  In regard to the new issue, the Board determined the evidence presented is insufficient to warrant the requested relief.  As a result, the Board recommends denial of her request that pertains to promotion consideration to major by an SSB and restoration of MGIB benefits.



      _____________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)                                         AR20100014910



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ABCMR Record of Proceedings (cont)                                         AR20100014910


   
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