IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100024511 


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 a medical retirement.  

2.  He states he was medically disqualified for continued service based on a memorandum, dated 18 March 2008.  

3.  He provides three memoranda and a Department of Veterans Affairs (VA) rating decision.  

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 24 November 1959.  After having had prior enlisted service in the Regular Army, he was appointed as a Reserve commissioned officer on 14 May 1988.  

2.  On 15 August 1988, he was appointed a second lieutenant in the Army National Guard (ARNG) and he resigned from the ARNG on 10 October 1992.  On the following day, he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  

3.  Orders published on 6 May 1996 discharged him from the USAR, effective 15 May 1996.  

4.  He enlisted in the USAR on 17 May 1996 and reenlisted on 7 April 2002 for a period of 6 years.  

5.  On 3 January 2007, the VA granted him service-connection for a left ankle condition (10 percent (%); right ankle condition (10%); and sleep apnea (50%) with an overall combined rating of 70%.  

6.  In a memorandum, dated 4 March 2008, the command surgeon of the 
99th Regional Readiness Command, Coraopolis, PA, stated the 99th Regional Readiness Command Surgeon reviewed the applicant’s medical documents and determined his medical condition of sleep apnea, uncontrolled, was medically unacceptable in accordance with Army Regulation 40-501, paragraph 3-41c (Standards of Medical Fitness).  

7.  On 6 March 2008, he was issued his notification of eligibility for retired pay at age 60 (20-Year Letter).  

8.  In a memorandum, dated 18 March 2008, the applicant was notified he was found to be medically disqualified for continued USAR service under the provisions of Army Regulation 40-501, chapter 3, due to his sleep apnea.  He was given the option to request:  

* reassignment to the Retired Reserve per Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), chapter 6
* an Honorable Discharge from the USAR
* a review of his medical disqualification by a Physical Evaluation Board (PEB) to determine fitness only

9.  On 28 April 2008, he requested reassignment to the Retired Reserve with 20 or more qualifying years of service for retired pay purposes.  

10.  Orders, dated 1 May 2008, show he was discharged from the USAR in accordance with Army Regulation 40-501, on 1 June 2008, due to being found medically unfit for retention.  

11.  His Chronological Statement of Retirement Points shows he had 21 years and 3 months of qualifying service for retired pay at age 60.  

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability incurred while entitled to basic pay.  It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Under the laws governing the Army Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically-unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

13.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.  

14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

15.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 9-12a states that Reserve Component (RC) Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness.  Because these are cases of RC Soldiers with 
non-duty related medical conditions, MEBs are not required and cases are not sent through the Physical Evaluation Board Liaison Officers at the Military Treatment Facilities (MTFs).  Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USAR Command Regional Support Command or the Army Human Resources Command, Command Surgeon's office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that caused the Soldier to fail to meet medical retention standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s medical records were reviewed and it was determined that his medical condition disqualified him for retention in the USAR.  At that time, he was given the option to be transferred to the Retired Reserve, if eligible; to be discharged from the Army Reserve with an Honorable Discharge; or be considered by a PEB.  He requested reassignment to the Retired Reserve.  




2.  Based on his election, he should have been issued orders reassigning him to the Retired Reserve; however, he was issued orders which honorably discharged him from the USAR, effective 1 June 2008.  Therefore, he is entitled to revocation of the erroneous discharge orders and issuance of orders transferring him to the Retired Reserve.  

3.  Even though he received a 70 percent combined disability rating from the VA, the award of VA compensation does not mandate disability retirement or separation from the Army.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

4.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned by:

	a.  revoking Orders 08-122-00060, dated 1 May 2008, discharging him from the USAR; and

	b.  issuing orders transferring him to the Retired Reserve, effective 1 June 2008.




      _______ _   _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)                                         AR20100024511



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ABCMR Record of Proceedings (cont)                                         AR20100024511



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