IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20100029428 


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 the issuance of a 15-year letter and placement on the retired list, effective 28 January 2009, her 60th birthday.

2.  The applicant states:

* The U.S. Army Reserve (USAR) Medical Command (MEDCOM) failed to notify her by certified mail that she had 2 weeks to respond and apply for the 15-year letter 
* The USAR MEDCOM used mail that did not require her signature; the mail was delivered to her vacant home; she was working out of state; this caused the document to be received and returned after the suspense date
* MEDCOM did not request any additional medical documentation, evaluation, or physical therapy, as they claimed
* She submitted all required documents in a timely manner and worked diligently to correct any errors or omissions
* She completed 15 years of USAR service and she was medically retired on 11 January 2007; she met the requirements for a 15-year letter but the U.S. Army Human Resources Command, St. Louis (HRC-STL), refused to issue it

3.  The applicant provides:

* DA Form 4187 (Personnel Action) (Request for Early Reserve Retirement)
* Army Reserve Personnel Command (ARPC) 249-2-E (Chronological Statement of Retirement Points)
* DA Form 3349 (Physical Profile)
* DA Form 2B (Personnel Qualification Record)
* USAR Policy Memorandum, Subject: Early Qualification for Reserve Retirement, Issuance of the 15-Year Memorandum
* Orders 06-346-00139, dated 12 December 2006 (Transfer to Retired Reserve)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 28 January 1949.

2.  She was appointed as a Reserve commissioned officer of the Army, in the rank of captain, Army Nurse Corps, and executed an oath of office on 30 August 1991.  

3.  She was initially assigned to the 330th General Hospital, Nashville, TN, and attached to the National AMEDD (Army Medical Department Activity) Augmentation Detachment (NAAD), Forest Park, GA.  She was promoted to major (MAJ) on 12 September 1999.

4.  On 21 April 2005, she was reassigned to the 2290th U.S. Army Hospital, Washington, DC.

5.  On 30 August 2005, by memorandum, HRC-STL notified her that she was considered by the May 2005 Reserve Components Selection Board (RCSB) for promotion to lieutenant colonel (LTC) but she was not selected.

6.  On 14 June 2006, she was issued a permanent physical profile for posterior left tibial tendon pain, ankle, and right knee pain.  The profile indicated:  

SM (Service member) will need to submit further information once physical therapy is completed to the PEB (Physical Evaluation Board).  Unable to lift and carry even 35 pounds.  SM failed to submit medical documentation for clearance.  For MMRB (Military Occupational Specialty (MOS) Medical Retention Board) to determine ability to deploy in MOS

7.  On 28 September 2006, by certified mail, the USAR MEDCOM notified the applicant's commander that:

	a.  The applicant was identified as possessing a permanent physical profile and must appear before a locally-constituted MMRB to determine her ability to physically perform in a worldwide environment.  She had the option to request a waiver for non-appearance before the MMRB.  She was declared non-deployable and could not transfer to the Individual Ready Reserve.  She was encouraged to submit facts relevant to her case and her ability to perform her primary duties/specialty in a worldwide field environment.

	b.  Her appearance was not mandatory.  However, if she decided not to appear, she would be required to submit a waiver requesting non-appearance for approval.  She was required to sign the notification statement concerning her election.  Her commander was required to submit an evaluation statement of her inability to perform her primary specialty 

	c.  The MMRB would be required to make a recommendation to retain her, reclassify/change her specialty, place her on probation (until her condition improved), or refer her to the physical disability evaluation system or Reserve Components (RC) medical disqualification process if her assignment limitations or medical condition precluded satisfactory performance in a worldwide environment.

8.  The MMRB acknowledgement statement, also dated 28 September 2006, required her to acknowledge receipt of the notice regarding her medical disqualification, advised her of her rights (transfer to Retired Reserve, request an honorable discharge, or request an MMRB to review her medical records for final determination).  She was allowed 15 days to respond.  She was also notified that "failure to respond in the time allotted would result in separation proceedings." 

9.  Although the U.S. Postal Service label shows the certified letter was delivered to her, there is no indication she completed the acknowledgement statement, exercised her options, or responded to this notification.

10.  On 3 August 2006, by memorandum, HRC-STL notified her that she was considered by the May 2006 RCSB for promotion to LTC but she was not selected.

11.  On 7 November 2006, by memorandum to the USAR Command, Fort McPherson, GA, an official at the USAR MEDCOM recommended approval of her discharge.  He stated 

Request retirement due to her medical condition; applicant failed to reply within the specified suspense to the Notification of Medical Disqualification memorandum resulting in immediate separation proceedings and discharge from the USAR in accordance with Army Regulation (AR) 600-60 (Physical Performance Evaluation System) and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

12.  On 12 December 2006, Headquarters, USAR MEDCOM, published Orders 06-346-00139, reassigning her from the 2290th U.S. Army Hospital to the Retired Reserve by reason of being medically disqualified.  The orders stated she was authorized early retirement under Title 10, U.S. Code (USC), section 12731b.  

13.  Her ARPC 249-2-E, dated 4 November 2006, shows she had completed 15 years of qualifying service for non-regular retirement.

14.  She turned 60 years old on 28 January 2009.  She submitted an application for retired pay at age 60 but her application was returned without action because she was ineligible to receive a 15-year letter.

15.  On 17 April 2009, by letter addressed to her Member of Congress, an official at The Adjutant General Directorate, HRC-STL stated:

	a.  As a Selected Reserve member with at least 15 years of qualifying service, eligibility for a 15-year letter is determined by U.S. Code (USC), Title 10, section 12731b (physical disability not incurred in line of duty) to apply for retired pay at age 60.  Eligibility is based on non-retention in the Selected Reserve, completion of 15 years of qualifying service, completion of the last required years of service as required by law, and request of a transfer to the Retired Reserve. 

	b.  A review of her DA Form 3349 shows she was required to submit further information to the PEB once she completed physical therapy.  She failed to reply within the specified suspense date to the Notification of Medical Disqualification memorandum resulting in her immediate separation proceedings and she was discharged from the USAR in accordance with AR 600-60 and AR 635-40.

	c.  The official also stated that his office had spoken with her on several occasions regarding this issue and explained to her that she should apply to this Board.

16.  On 17 May 2010, by memorandum to the Office of the Inspector General (IG), the Chief, Transition and Separation Branch, HRC-STL, stated:

	a.  A review of applicant's file determined she did not meet the criteria for the issuance of a 15-year letter.  A unit MMRB was conducted and she was informed her medical packet was deficient in some documentation.  She was afforded an opportunity to provide the documentation but she did not do so.  Her unit subsequently transferred her to the Retired Reserve stating she was medically disqualified. 

	b.  A recent review of the documents by his office as well as the Command Surgeon determined that there was not sufficient documentation to substantiate her transfer for medical reasons.  In fact, when she was offered the opportunity to appear before the MMRB with her documentation, she stated on 29 August 2006 that she could not because she was working as an independent contractor and her working locations varied.  

	c.  He opines that she and her chain of command failed to properly conduct the administrative proceedings involved in the MMRB.  As a result of this failure, she has lost 4 possible good years toward retirement (2006 through 2009).  Additionally, she was 42 1/2 years of age when she entered the service.  She knew she had no possibility to attain a military retirement (although medical personnel may be extended through age 68, depending on the criticality of grade and specialty).

17.  An advisory opinion was obtained on 3 August 2011, from the Office of the Deputy Chief of Staff, G-1, USAR Command.  An official recommended disapproval of the issuance of a 15-year letter citing the lack of medical documentation rendering her medically disqualified for continued service.  She had been previously offered an opportunity to appear before a medical board to present the documents necessary to substantiate medical unfitness in August 2006 but she failed to do so.  She was not eligible for reassignment to the Retired Reserve and his office would revoke the orders that transferred her to the Retired Reserve and publish an order discharging her from the USAR effective 31 January 2009, based on her reaching mandatory removal date (MRD) for maximum age.  He concluded that since the applicant was a two-time non-select for promotion, she would be ineligible for an MRD extension.

18.  In her rebuttal, dated 13 August 2011, she stated:

* She was not eligible for retention in the Selected Reserve
* She completed 15 qualifying years of service
* USAR MEDCOM failed to notify her properly/adequately
* No medical evaluation was ordered or performed
* No additional documentation of her medical condition was allowed to be submitted
* Physical therapy was never provided or ordered
* There was no opportunity for her to appear before the medical board
* An official at the Transition/Separations Branch was rude to her
* The response to the IG did not address the failure to issue her a 15-year letter
* She was only passed over once and only because her records were not properly prepared and she did not know she was being considered for promotion
* The USAR Command advisory opinion is not valid because the officials who prepared it are not qualified to render a medical opinion
* The Transition and Separations Branch lacks medical qualification to administratively question her medical retirement
* The Army should not take away what she has earned
* If no 15-year letter is issued, she requests a one-year extension to complete a medical evaluation and have a medical board review performed
* She request an opportunity to appear before this Board

19.  Title 10, USC, 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.

20.  Title 10, USC, 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 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.  

21.  AR 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

22.  AR 600-60 implements and establishes operating procedures for the Physical Performance Evaluation System (PPES).  The purpose of the PPES is to maintain the quality of the force by ensuring that Soldiers are physically qualified to perform their primary MOS or specialty code worldwide and under field conditions.  This regulation makes the following definitions:

	a.  The PPES is a program designed to evaluate Soldiers with a permanent numerical designator of 3 or 4 (hereafter referred to as a permanent 3 or 4 profile) in one of the profile serial factors based on their physical ability to perform their duties in a worldwide field or austere environment and recorded on DA Form 3349.  The PPES establishes the MMRB as an administrative screening board to make this evaluation.  This screening system ensures continuity of effort among commanders, doctors, personnel managers, and the PDES.  It provides officials with increased flexibility to determine a Soldier’s deployability, reclassification potential, or referral into the PDES (or processing for medical disqualification as applicable to certain RC cases).

	b.  Duty-related cases:  Applies to Soldiers referred into the PDES via a Medical Evaluation Board and whose PEB evaluation includes a determination of eligibility for disability compensation.  This includes all Active Army, Active Guard Reserve, and RC Soldiers currently on active duty.  For all other RC Soldiers, it refers to those RC Soldiers whose medical impairments were incurred, aggravated, or who experienced an incident of manifestation that gives rise to a question of aggravation while the Soldier was in a duty status.  Normally, if a line of duty determination is required, then the case is considered a duty-related case regardless of the line of duty findings.  However, the RC referring organization determines case category.

	c.  Medical Disqualification:  Generally, this phrase pertains to RC Soldiers who are not on extended active duty and who fall below the medical retention standards of AR 40–501, chapter 3, for a civilian-incurred condition.  For example, drilling RC members who are injured at home or at civilian employment. DODI 1332.38 provides these Soldiers the right to request a fitness determination by the PDES if they non-concur with separation for medical disqualification.  While the standard for separation for medical disqualification is a medical condition that falls below medical retention standards, the standard under the PDES is a condition that prevents the Soldier from reasonably performing the duties of office, grade, rank or rating.  Thus, it is possible for a Soldier who does not meet medical retention standards to be found fit under the PDES. 

	d.  Nonduty-related impairments:  These pertain to RC Soldiers who have impairments that were neither incurred nor aggravated while the member was performing duty.  This includes no incident of manifestation while performing duty that raises the question of aggravation.  RC Soldiers with nonduty-related impairments are eligible to be referred into the PDES for solely a fitness determination (and not a determination of eligibility for disability benefits) upon notification that they are pending separation for medical disqualification.  This definition primarily relates to the nonduty-related process for RC Soldiers in a Troop Program Unit/Individual Ready Reserve status and pending separation for medical disqualification for conditions incurred while in a civilian status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should be issued a 15-Year Letter in order to be eligible to receive non-regular retired pay at age 60.  

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 for Eligibility for Non-Regular Retired Pay at Age 60, a 15-Year Letter, if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes. 

3.  The applicant was issued a permanent physical profile for tibial, ankle, and right knee pain.  The permanent profile required an MMRB.  It is unclear what medical condition rendered her medically unfit for retention in the USAR.  The purpose of the MMRB was to administratively screen her records to make this evaluation.  She was notified by certified mail and she was encouraged to submit facts relevant to her case and her ability to perform her primary duties/specialty in a worldwide field environment.  She failed to respond to the notification letter. 

4.  When she failed to respond to the notification, officials at the USAR MEDCOM recommended her discharge.  However, it appears that since she had completed 15 years of qualifying service, the processing official transferred her to the Retired Reserve instead of honorably discharging her.  Accordingly, she was issued an official order transferring her to the Retired Reserve.

5.  With an order transferring her to the Retired Reserve in hand, she waited until age 60 and submitted an application for retired pay.  She was told she was never issued a 15-year letter, but no one told her why she was ineligible for such letter. 


6.  Various errors were committed by the unit/MEDCOM and the USAR in discharging her.  Her failure to respond to the MMRB only compounded those errors.  Nevertheless, although it remains unclear what specific medical condition rendered her medically unfit for retention, the fact remains that she completed 15 qualifying years, she was in the Selected Reserve at the time, she was issued a physical profile which would have required an MMRB to determine her medical fitness, and she was issued an order transferring her to the Retired Reserve.

7.  Therefore, as a matter of equity, she should be issued a 15-year letter and should be entitled to retired pay at age 60.

8.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Showing she was eligible for retired pay 
* processing her application for retired pay at age 60 and placing her on the
* 
 retired list effective 29 January 2009 with entitlement to retired back pay as of that date



      _______ _   _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)                                         AR20100029428



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ABCMR Record of Proceedings (cont)                                         AR20100029428



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