IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100015612 


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 her records as follows:

* Correct her erroneous separation to show medical retirement
* Award of 7 months and 22 days of service credit
* Issue a Notification for Eligibility for Non-Regular Retired Pay at Age 60 (15-year Letter)
* Transfer to the Retired Reserve
* Retired pay at age 60

2.  The applicant states she was found medically unfit by the Georgia Army National Guard (GAARNG) in 1999.  The GAARNG should have allowed her to obtain 7 months and 22 days of service so she could be entitled to a 15-year letter and ultimately retired pay at age 60.  She served for 14 years, 4 months, and 8 days in the ARNG and she was led to believe she would be eligible for retired pay at age 60.  When she was found medically unfit, she appealed the decision but her appeal was overruled.  Had she been able to stay an additional 7 months and 22 days, she would have been able to obtain a 15-year letter.  She does not believe the regulation was followed in her situation.  She actually served for 18 years but only 14 years, 4 months, and 8 days are good years.

3.  The applicant provides:

* her National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* 
a NGB Form 23A (ARNG Current Annual Statement)
* Orders 018-035 (discharge orders) and Orders 020-004 (amendment)
* her Medical Fitness for Retention packet and allied documents
* a Pulmonary Consultation
* a Medical Screening Summary
* her Health Risk Appraisal Profile
* a Report of Medical Examination and allied documents

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 she was born on 28 April 1950.  She enlisted in the GAARNG on 24 October 1980 and she held military occupational specialty (MOS) 71L (Administrative Specialist).  She was honorably released from the ARNG on 20 April 1982 and she was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete her remaining service obligation.

3.  She again enlisted in the ARNG on 4 April 1986 and she held MOS 92Y (Unit Supply Specialist).  She executed a 6-year extension on 6 March 1993 and she was assigned to the 151st Evacuation Battalion, Marietta, GA.

4.  On 11 February 1998, by letter, a medical doctor stated that the applicant had been under his care since August 1992 for bronchial asthma.  She had extensive exercise testing in 1993 which showed mild to moderate impairment to exercise but no limitations in cycling, walking, or performing normal activities.

5.  It appears she underwent a physical evaluation in 1998 that assigned her physical limitations.  A subsequent review of her medical records by a State Medical Review Board (SMRB) of the GAARNG determined she was medically unfit for retention.

6.  On 9 June 1998, by memorandum to her commander, a State Health Systems Specialist stated that the SMRB had found her medically unfit for retention and that her commander should notify her of her right to appeal no later than 9 September 1998.

7.  On 26 July 1998, she was notified by a medical services officer of the GAARNG that she was found medically unfit for retention.  She was advised of her rights and on 4 August 1998, she elected to appeal the findings of the board. She contended that her condition did not hinder her duties but requested a transfer to a non-deployable unit.  With her appeal, she submitted various letters of recommendations for retention.

8.  On 8 October 1998, by memorandum, an official at the GAARNG again notified her that an SMRB had reviewed her medical records and determined she was unfit to perform the duties of her grade, MOS, and duty position, and that this action had the appropriate approval of medical personnel.

9.  On 15 November 1998, she acknowledged receipt and elected to appeal the findings of the board.  

10.  On 27 January 1999, by memorandum, the State Assistant Adjutant General, GAARNG, notified the applicant that after a review of her appeal, a determination was made that she was found medically unfit for retention in the GAARNG in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  

11.  On 2 February 1999, the GAARNG published Orders 018-035 ordering her honorably discharged from the GAARNG effective 1 February 1999 (amended to 1 March 1999) in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 1-26j(1).

12.  She was honorably discharged from the ARNG on 1 March 1999.  Her NGB Form 23B shows she completed 14 years, 4 months, and 8 days of qualifying service.

13.  An advisory opinion was obtained on 18 February 2011 from the National Guard Bureau (NGB).  The advisory official recommended disapproval of the applicant's request to the change of her characterization of service but recommended the State assist the applicant in submitting her medical file to a non-duty related physical evaluation board (NDR PEB) solely for a determination of fitness.  The advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.

14.  On 11 March 2011, she submitted a rebuttal wherein she stated she had contacted the State and she fully understands that there is nothing they can do.  She appealed again to grant her sufficient service credit to attain 15 years so she may be able to draw retired pay at age 60.  She also stated that her medical records should have been submitted before an NDR PEB and that if she had been given the opportunity, while her medical record went through the process, she would have reached or been allowed to reach 15 years thus enabling her to retire.

15.  Title 10, U.S. Code, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement.  It states that a person is entitled, upon application, to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title, and is not entitled under any other provision of law to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

16.  Title 10, U.S. Code, section 12731b provides a special rule for members with physical disabilities not incurred in the line of duty.  It states, in pertinent part, that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes.  This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC.  

17.  DOD Instruction 1332.38, definition E-2.1.20, defines NDR impairments as "impairment of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation.  Members with NDR impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  The determination of whether a case is forwarded to the PEB as an NDR case (as opposed to a duty-related case) rests with the RC."

18.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that RC Soldiers with NDR medical conditions who are pending separation for failing to meet the medical 

retention standards are eligible to request referral to a PEB for a determination of fitness.  The process is designed to give the Soldier with an NDR impairment the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was administratively discharged from the ARNG by reason of medical disqualification for retention.  A determination was made that she was unable to perform in her MOS.  A board determined that because of her non-duty related medical condition, retaining her was no longer appropriate.  Her disqualifying medical condition was not controlled despite a more than adequate trial of medical treatment and lifestyle modification.

2.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  However, a member of the Selected Reserve of an RC who is medically disqualified for continued service in an RC may be considered as having met the service requirement and may be issued a notification if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes. 

3.  The State may issue a 15-year letter to ARNG members who no longer meet qualifications for membership in the Selected Reserve because they are unfit due to physical disability (with exceptions).  

4.  It appears that she may not have been counseled properly regarding her right to request an NDR PEB.  It is reasonable to presume that had she been offered the option of an NDR PEB, she would have elected this option which would have put a hold on her administrative discharge, pending the decision of such board.  
However, it appears the State already had all her medical records together when she was found unfit for retention in June 1998; when they reviewed her appeal in July 1998; and when they again notified her in October 1998 that she was unfit for retention.  It appears it would have been unlikely that the State would have taken 7 months or more to conduct an NDR PEB.

5.  Since an NDR PEB is used solely for a determination of fitness for retention and since she had already been determined to be unfit, notwithstanding the NGB's advisory opinion, presenting her records before an NDR PEB at this time would not change the outcome.  Therefore, there is no need to do so.

6.  She completed 14 years, 4 months, and 8 days of qualifying service.  In order to be issued a 15-year letter, she would have had to complete 15 but less than 20 qualifying years.  She is not entitled to an additional 7 months and 22 days of service credit as doing so would give her an advantage not otherwise available to other Soldiers.  

7.  Her discharge from the ARNG appears to be appropriate.  She was ineligible for referral to the Army physical disability evaluation system, and thus medical retirement, because her medical condition was not incurred while on active duty.

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)                                         AR20100015612



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ABCMR Record of Proceedings (cont)                                         AR20100015612



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