BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100019681 


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 that his orders transferring him to the Retired Reserve be voided and to be reinstated to a troop program unit (TPU) and placed before a medical board under the Physical Disability Evaluation System.

2.  The applicant states, in effect, that he had two 3's in his physical profile (PULHES) for his upper and lower back when he was transferred to the Retired Reserve and should have been given a medical board review to determine if he should be reclassified or retired.  He further states that he received a military occupational specialty medical retention board (MMRB) but did not receive a medical evaluation board (MEB) or Physical Evaluation Board (PEB).

3.  The applicant provides doctor's notes from the neurosurgeon who identified his problem; notes from the neurosurgeon who performed the surgery; progress notes from Fort Bragg, North Carolina; and copies of his physical profiles.

CONSIDERATION OF EVIDENCE:

1.  The applicant served enlistments in the Arkansas Army National Guard, the Regular Army, and the U.S. Army Reserve (USAR) and was promoted to pay grade E-6 on 20 December 2005.

2.  He was ordered to active duty in support of Operation Iraqi Freedom on 20 March 2006.  He served in Iraq as a psychological operations specialist from 8 April 2006 to 27 March 2007 and was honorably released from active duty on 20 April 2007.

3.  On 21 August 2008, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

4.  On 10 December 2009, the applicant submitted a memorandum through his chain of command requesting to be transferred to the Retired Reserve due to his continuing medical problems because he could no longer perform his military duties at the high level in which he was accustomed and that his Soldiers were entitled to.

5.  On 15 December 2009, orders were published at Fort Bragg, North Carolina, which transferred him to the Retired Reserve effective 31 December 2009.

6.  In the processing of this case a staff advisory opinion was obtained from the USAR Command (USARC) at Fort McPherson, Georgia, which opines that the applicant was properly counseled regarding his options on 30 December 2008 when he was advised that he was being referred for a fitness-for-duty examination.  The applicant's retirement request clearly indicates he was requesting retirement for medical reasons when he had the option of attending a medical board, either by personal request or unit referral.  Officials at USARC opine that the applicant's orders were published after his expiration of term of service and he was properly transferred to the Retired Reserve.  Accordingly, no relief was warranted.

7.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

8.  A review of the applicant's official records failed to reveal the results of the MMRB the applicant claims he received.  His records, which include his evaluation reports, show no indication the applicant was unable to perform his duties.

9.  The documents provided by the applicant include a memorandum addressed to the applicant explaining that a fitness-for-duty evaluation was completed on 30 December 2008 which indicated he may not be fit for retention.  He was also advised that he might be referred for processing through the PDES, that he would be required to be evaluated by an orthopedist, and that a consultation had been requested.

10.  Army Regulation 135-178 (Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel from the USAR.  Chapter 12 states that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.  Personnel who are physically unfit for retention will not be separated because of expiration of term of service unless processing for separation because of physical disability is waived.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.  This regulation also prescribes the provisions for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

DISCUSSION AND CONCLUSIONS:

1.  Although it cannot be determined with any degree of certainty what happened in the applicant's case, there is sufficient evidence to show he was in the process of undergoing a fitness for duty evaluation under the PDES when he requested transfer to the Retired Reserve.

2.  While the results of his MMRB are not present in the available records, the evidence shows the applicant specifically requested transfer to the Retired Reserve because he was unable to perform his duties at the high level to which he was accustomed.  This in itself served as a waiver of physical disability processing.

3.  In accordance with the applicable regulation, personnel who are physically unfit for retention will not be separated due to expiration of term of service unless processing for separation because of physical disability is waived.  The available evidence suggests the applicant waived processing for separation because of physical disability so he would be eligible for nondisability retired pay at age 60.

4.  Accordingly, he was properly transferred to the Retired Reserve in accordance with the applicable regulations and his individual request.  The fact that the applicant may have changed his mind does not constitute an error on the part of the Army.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ___x_____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20100019681



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ABCMR Record of Proceedings (cont)                                         AR20100019681



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