IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20100028629 


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 transfer to the Retired Reserve by reason of medical disqualification for retention.

2.  The applicant states:

* he was denied the option to transfer to another Army National Guard (ARNG) unit, the Individual Ready Reserve, and/or the Retired Reserve
* his company commander was angry with him because he reenlisted a Soldier whom the company commander did not like
* he recently learned that another Selected Reserve Soldier in similar circumstances was allowed to serve a couple more years so he could retire
* he requested a medical board before his discharge, but he was never informed that he had been scheduled for one at Fort Stewart, GA, in 1991 and the board never convened
* he was discharged from the ARNG before he got notice of his board
* he had a permanent disability when he entered the ARNG
* he was issued a permanent physical profile after his unit learned of his retirement from his civilian job because of the physical profile
* he was discharged as physically unfit only 1 month after he passed his Army Physical Fitness Test (APFT)
* he has over 2,800 points toward retirement; it only takes 1,000 points to retire
* he has been retired from a Federal civilian position with a 40-percent disability with 21 years and 10 months of Federal service and he has a 
30-percent service-connected disability

3.  The applicant provides:

* DA Form 3349 (Physical Profile), dated 20 March 1990
* Department of Veterans Affairs (VA) Form 21-8951-1 (Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances)
* extract of Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers)
* extract of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)
* extract of Army Regulation 40-501 (Standards of Medical Fitness)
* extract of National Guard Regulation 600-200 (Enlisted Personnel Management)
* memorandum, dated 31 January 1991, subject:  Request for Medical Board Proceedings
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* NGB Form 23A (ARNG Current Annual Statement)
* DA Form 2-1 (Personnel Qualification Record)
* DA Form 2166-6 (Enlisted Evaluation Record) for the period September 1987 through November 1988
* DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) for the period December 1988 through November 1989
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 2 April 1970
* DD Form 214 (Report of Separation from Active Duty) for the period ending 28 February 1975
* requests for alternate annual training
* orders awarding him a military occupational specialty (MOS)
* high school diploma
* birth certificates for himself and family members
* Georgia driver's license
* social security card
* 1975 discharge from active duty orders
* VA Rating Decision, dated 23 April 1973
* various medical documents including:

* Standard Forms 88 (Report of Medical Examination)
* Standard Forms 93 (Report of Medical History)
* Standard Forms 88 (Chronological Records of Medical Care
* medical screening summaries
* radiographic reports
* cardiovascular screening
* other medical 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 he was born on 18 February 1949.  He enlisted in the Regular Army (RA) on 3 April 1967 and held MOS 67B (O-1/U-6 Airplane Repairman).  He was honorably released from active duty on 2 April 1970 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his service obligation.  His DD Form 214 for this period shows he completed 3 years of creditable active service.

3.  He again enlisted in the RA on 1 March 1971 and held MOS 63H (Track Vehicle Repairer).  He was honorably discharged on 28 February 1975.  His DD Form 214 shows he completed 4 years of creditable active service during this period and a total of 7 years of active service.

4.  He enlisted in the Georgia ARNG (GAARNG) for 1 year on 2 August 1987 and he extended his enlistment by a period of 6 years on 15 May 1988.  He completed the 2-week training course for MOS 71L (Administrative Specialist) and the 2-week Retention NCO Course.  He was assigned to the 560th Engineer Battalion, Columbus, GA.

5.  His DA Form 2166-6 for the period September 1987 through November 1988 shows he performed the duties of Retention NCO with Headquarters and Headquarters Company, 560th Engineer Battalion.

6.  On 19 July 1989, he underwent an over-40 medical examination at Fort Benning, GA, that included a cardiovascular risk screening.  This revealed one or more of the criteria to be elevated or abnormal.  He was not cleared to take the APFT.

7.  On 10 August 1989, he underwent a physical evaluation that found him in need of an audiology evaluation, repeat cholesterol test, repeat blood pressure test, and a low triglyceride diet.  He was not cleared to perform physical training (PT).

8.  On 20 March 1990, he was issued a temporary physical profile for early arthritis in his left elbow and a history of chronic instability of the radial head.  The temporary profile imposed a "no push-up and no lifting over 30 pounds with the left hand" limitation.

9.  On 27 April 1990, Headquarters, U.S. Army Medical Department Activity, Fort Benning, GA, notified the applicant's commander of the applicant's physical profile and his physical limitations.

10.  On 11 June 1990, GAARNG notified the applicant's chain of command that the applicant's risk index was below 7.5 and he should undergo a cardiovascular screening evaluation before he could be cleared to perform PT.  The results of such evaluation were requested to be forwarded to the GAARNG Surgeon's Office.

11.  On 31 January 1991, the applicant's immediate commander requested a medical board convene to determine the applicant's retention in the ARNG.  The specific medical condition is not mentioned.

12.  On 30 March 1991, the applicant submitted a GAARNG Form 0152-R (Application for Enlisted Personnel Action) to the GAARNG.  He requested annual training (AT) leave by reason of "pending medical board."  The form indicates his unit was scheduled for AT at Fort Stewart, GA, on 30 March 1991.  It does not indicate he was pending a medical board at Fort Stewart.

13.  On 2 April 1991, consistent with his chain of command's recommendation, the GAARNG approved the applicant's leave from AT.

14.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  There is no indication he was scheduled for a medical board or that a medical board convened, there are insufficient medical records to show the specific medical unfitting reason for his discharge, there are no separation orders filed in his service records, and there is no indication he requested a waiver for retention in the GAARNG.

15.  He was honorably discharged from the GAARNG on 15 May 1991.  His NGB Form 22 shows he was discharged in accordance with paragraph 8-26y of National Guard Regulation 600-200.  He completed 3 years, 9 months, and 14 days of ARNG service during this period.  His NGB Form 23A shows he completed a total of 9 years, 10 months, and 11 days of total service for nonregular retirement.

16.  An advisory opinion was obtained from the NGB on 21 June 2011 in the processing of this case.  An NGB official recommended disapproval of the applicant's request.  The official stated:

	a.  The applicant did not provide sufficient evidence to make a determination. 
He did not provide medical documentation to explain the medical condition for which he was discharged.  He did not provide a line-of-duty determination or 
fit-for-duty medical review board documentation.

	b.  Although he retired from civil service with a 40-percent disability, this does not demonstrate he was medically unfit at the time of his discharge from the GAARNG.  He received a P3 profile for "early arthritis of the left elbow with a history of chronic instability of the radial head" on 20 March 1990.  According to a GAARNG memorandum, dated 31 March 1991, he was referred to a medical board.  No board findings were found in his case file.  In the same memorandum, he requested to be granted leave from training until a decision could be made because he did not feel he could perform his duties.  During this absence, a medical board was scheduled.  He states he was never notified of the medical board held in March 1991, but he states he was found unfit.  There are no board results or discharge orders showing he was released for not meeting physical standards for retention and there was no line-of-duty investigation in his file.

	c.  According to his retirement statement, he completed 9 years and 10 months toward eligibility for retired pay.  He would not have been eligible for a Reserve Component (RC) retirement.  The applicant had the burden of proof to demonstrate an error was made.  He did not provide evidence to show an error or an injustice occurred when he was discharged from the GAARNG.

17.  He submitted a rebuttal to the advisory opinion wherein he stated:

	a.  He documented his desire to remain in the GAARNG and his unit documented his request for a transfer and other options.  He was never aware of any orders directing him to Fort Stewart, GA, for a medical review.

	b.  He already documented that his company commander told him not to come to training until a determination of his status was made.  His commander was angry with him and treated him with indifference when he requested a transfer out of the unit.  His commander's response was that there was no vacancy within the battalion.

	c.  The VA Form 21-8951-1 is proof of the line-of-duty investigation or that his unit was aware of his disability upon enlistment.  All his disabilities, especially the elbow, were aggravated every time he performed duty with his unit.  The physical profile was recommended because of the chronic pain and instability of his elbow.  No attempt to relocate him outside the battalion was made by his chain of command.  He should have been eligible for other considerations/options, but his commander was mad at him.

18.  National Guard Regulation 600-200 governs procedures covering enlisted personnel management of the ARNG.  Chapter 8 covers reasons for discharge and separation of enlisted personnel from the ARNG.  Paragraph 8-26, in effect at the time, specified the reasons for administrative discharges from the ARNG.  Paragraph 8-26y stated that if a commander suspected a Soldier may not be medically qualified for retention, he/she would direct the Soldier to present him/herself for a medical examination in accordance with Army Regulation 
40-501.  A complete medical examination would be accomplished and the results forwarded to the unit commander for disposition.  If retention was not recommended, a request for discharge would be submitted to the State Adjutant General.  Discharge action would not be affected pending final disposition of the case.  It also stated to refer to Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), chapter 12.

19.  Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the RC.  Chapter 12 provided guidance for the separation of Soldiers who were medically unfit for retention.  It stated that separation would be accomplished by separation authorities when it was determined that an enlisted Soldier was no longer qualified for retention by reason of medical unfitness unless the Soldier requested and was granted a waiver or was eligible for transfer to the Retired Reserve.

20.  Army Regulation 40-501, chapter 3, provides standards for medical retention.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.

21.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for medical evaluation boards which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.

22.  Title 10, U.S. Code, section 12731, provides the legal age and service requirements for Reserve nonregular 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.

23.  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 that in the case of a member of the Selected Reserve of an 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.
This law was enacted on 23 October 1992, retroactive to those members who had completed at least 15 years of qualifying service as of 1 October 1991

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances surrounding the applicant's discharge from the GAARNG some 20 years ago are not available for review with this case. 
However, the selected documents submitted by the applicant indicate he was administratively discharged from the ARNG by reason of medical disqualification for retention.

2.  The only references to a medical board are the company commander's request to the battalion commander and the applicant's request for AT leave.  Nevertheless, it appears the results of his retention physical examination were evaluated by the State Surgeon who appears to have determined the applicant did not meet the retention standards of Army Regulation 40-501, chapter 3, and that because of a medical condition, retaining him was no longer appropriate.

3.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for nonregular retirement.  However, a member of the Selected Reserve 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 of eligibility for retired pay at age 60 if the member completed at least 15 years, but less than 20 years of qualifying service for nonregular retirement purposes.

4.  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 for physical disability (with exceptions).  Soldiers issued a 15-year letter have two options – honorable discharge or transfer to the Retired Reserve.

5.  The applicant completed 9 years and 10 months of qualifying service.  In order to be issued a 15-year letter, he would have had to complete at least 15 years, but less than 20 qualifying years.  He was ineligible for a transfer to the Retired Reserve.  He was also ineligible for referral to the Army Physical Disability Evaluation System – and thus medical retirement – as it appears his medical condition was not incurred or permanently aggravated while serving on active duty.

6.  He was honorably discharged on 15 May 1991 under the provisions of National Guard Regulation 600-200, paragraph 8-26y, for being medically unfit for the retention standards of Army Regulation 40-501, chapter 3, before the law was even enacted providing for early retirement due to being medically unfit for retention.  The authority and reason for his separation are correct and are in accordance with applicable regulations in effect at the time.  Therefore, he is not entitled to correction of his records to show he was medically discharged as opposed to being separated as medically unfit for the retention standards of Army Regulation 40-501.

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 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)                                         AR20100028629



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028629



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1