BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20110000091 


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, in effect, a 15-year medical retirement.

2.  He provides no statement or additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be issued a 15-year medical retirement.

2.  Counsel states the applicant injured himself and could no longer maintain the medical standards for retention in the U.S. Army Reserve (USAR).  The applicant was given the option of requesting reassignment to the Retired Reserve and retired pay at age 60 because he had at least 15, but less than 20 qualifying years of service for retired pay purposes.  This is the option the applicant selected, but was discharged instead of being retired.

3.  Counsel provides the following documents pertaining to the applicant:

* DD Form 214 (Report of Separation from Active Duty), dated 1977
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1980 and 2003
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* AHRC Form 4134 (U.S. Army Human Resources Command - St. Louis
          Office of the Command Surgeon Diabetes Evaluation)

* AHRC Form 4132 (U.S. Army Human Resources Command - St. Louis
          Office of the Command Surgeon Asthma Screening)
* AHRC Form 4135 (U.S. Army Human Resources Command - St. Louis 
          Office of the Command Surgeon Chronic Pain Evaluation)
* AHRC Form 4123 (U.S. Army Human Resources Command - St. Louis
          Office of the Command Surgeon Medical Information Checklist)
* ARPC-ZSG-M Form (Certification of Current Status)
* Request for "DLOD" Fitness for Duty (FFD) Evaluation memorandum, dated 28 June 2006
* Notification of Medical Disqualification memoranda, dated 5 July and 18 August 2006
* 2008 USAR discharge orders

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he served in an active duty status from 4 February 1975 to 1 December 1977 and from 2 December 1977 to 
1 December 1980 until he was honorably released from active duty (REFRAD) due to completion of required service and transferred to a Reserve unit.  He was credited with completion a total of 5 years, 9 months, and 28 days of active service and 14 days of prior inactive service.

2.  He was discharged from the USAR on 19 January 1981.

3.  He enlisted in the USAR in pay grade E-4 on 17 April 1999 and reenlisted on 18 April 2001.  He was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 16 January 2003.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 July 2003, shows he was seen as an outpatient at the Camp Arafjan's Medical Center in Kuwait on 22 February 2003 for a lower back and neck injury.  This form stated that he injured his lower back and neck during a motor vehicle accident while deployed in Kuwait.  

5.  He was honorably REFRAD on 5 August 2003, for completion of required service, and transferred to a Reserve unit.  

6.  On 26 May 2006, he was assigned a permanent profile of 113122 for post traumatic stress disorder (PTSD), back pain/sciatica, lumbago, herniated disc, and bilateral knee pain-osteopatella malacia.  It was determined that he did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and a medical evaluation board or physical evaluation board was not needed.
7.  The following forms, dated 23 February 2006, show the following:

* AHRC Form 4134 – the applicant was diagnosed with Diabetic Ketoacidosis (Pancreatitis) on 22 January 2006
* AHRC Form 4132 - dirt, dust, pollen in the air, green shrubs, and bushes trigged asthma attacks, working on claim for disability due to injuries that occurred in Iraq in 2003
* AHRC Form 4135 - numbness of his left thigh, shooting pain through right arm and index fingers, and sharp aching burning feeling in neck
* AHRC Form 4123 - diagnosed with PTSD; elevated glucose, back, knee, and neck pain; and asthma.  His medical problems prohibited him from passing a fitness for duty examination, an Army Physical Fitness Test or firing a weapon

8.  An ARPC-ZSG-M form shows he was diagnosed with back and neck pain from an injury in Iraq in February 2003.

9.  A Standard Form 507 (Medical Record), dated 18 May 2006, shows he failed to meet retention standards per Army Regulation 40-501, paragraph 3-39h (back pain).

10.  A Memorandum, subject:  Request for "DLOD" FFD Evaluation, dated 
28 June 2006, advised the applicant's commander that he was identified as having significant medical problems (unable to perform limited duty at the present moment) in military occupational specialty 88M (Motor Transport Operator).  He was also determined to be unable to drive and sit for a long period of time.  An FFD evaluation was requested in order to determine if he met medical retention standards in accordance with Army Regulation 40-501, chapter 3.

11.  A Memorandum, subject:  Notification of Medical Disqualification, dated 5 July 2006, advised the applicant that his medical records revealed one or more medical conditions that disqualified him for retention in the USAR.  The memorandum also advised him of the following options for disposition of his case:

* elect to be transferred to the Retired Reserve if otherwise eligible for retirement based on qualifying years of service
* elect to be discharged from the USAR with an Honorable Discharge Certificate
* elect to be considered by a Non-Duty Related-Physical Evaluation Board (NDR-PEB)


12.  The above memorandum further advised the applicant that if he elected to be consideration by an NDR-PEB, the NDR-PEB preview was limited to a fitness determination and it could not award disability compensation.  

13.  On an unspecified date, the applicant elected to be transferred to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60.  He acknowledged that he had at least 15 but less than 20 qualifying years of service for retired pay purposes by initialing this entry.  He also initialed "Note:  I will provide unit with documentation to re-update initial action if it did not take, must re-submit he did have 15 good years" at the bottom of the page.

14.  There is no evidence he submitted documentation confirming he had completed 15 good years.

15.  A Memorandum, subject: Notification of Medical Disqualification memorandum, date 18 August 2006, advised the applicant that his medical records revealed one or more medical conditions that disqualified him for retention in the USAR.  The memorandum also advised him of the same options listed in the memorandum dated 5 July 2006.  There is no evidence to show his election based on this memorandum.

16.  On 11 March 2008, Headquarters, 311th Sustainment Command (Expeditionary), issued orders honorably discharging him from the USAR effective 10 April 2008.  These orders show the authority for his discharge was Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations).  

17.  A Chronological Statement of Retirement Points, dated 5 May 2011, shows he had a break in service from 20 January 1981 to 16 April 1999.  The statement also shows he was credited with 11 years, 9 months, and 28 days of qualifying service for retirement as of his retirement year ending 16 April 2008. 

18.  In the processing of this case, an advisory opinion was provided by the Chief, Special Actions Branch, AHRC, Fort Knox, KY, dated 23 May 2011.  The advisory official indicated the applicant did not meet the 15-year retirement eligibility requirements.  Title 10, U.S. Code, section 12731b states, if a Soldier in the Selected Reserve has completed at least 15 years, but less than 20 years of service, the Soldier will be entitled to the issuance of a 15 year retirement letter.  The applicant completed 11 years of qualifying service; therefore, he was ineligible to receive a 15 year letter and he was also ineligible for retirement benefits.  The advisory official also provided contact information if the applicant believed his Chronological Statement of Retirement Points, dated 5 May 2011, was inaccurate.
19.  On 6 June 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

20.  Army Regulation 135-178 prescribes the policies for the separation of enlisted Soldiers from the Reserve Components.  Chapter 12 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness.

21.  Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in line of duty), specifies a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability, for the purpose of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 years and less than 20 years of service

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records shows, while serving as a member of the USAR, in May 2006 the applicant was assigned a permanent profile for PTSD, back pain/sciatica, lumbago, herniated disc, and bilateral knee pain-osteopatella malacia.  It was determined he did not meet the retention standards of Army Regulation 40-501 and an MEB or PEB was not needed.  On 5 July 2006, he was advised that his medical conditions disqualified him for retention in the USAR.  He was discharged from the USAR effective 10 April 2008.

2.  He was advised of his options and he elected to be transferred to the Retired Reserve based on having at least 15 years but less than 20 qualifying years of service for retired pay.  He also acknowledged that if his election did not take he must resubmit evidence that he did have 15 good years.  There is no evidence of record that he did so.

3.  There is no documented evidence that he completed at least 15 good years prior to 10 April 2008.  The evidence of record also shows he had a break in service from 20 January 1981 to 16 April 1999 and he only completed 11 years, 9 months, and 28 days of qualifying service for retirement as of his retirement year ending 16 April 2008.  

4.  The documentation provided by counsel also does not demonstrate that the applicant's release from active duty and from the USAR was incorrect.  It is concluded he did not meet the eligibility requirements for completion of a 15-year retirement due to medical unfitness.  Therefore, he was properly separated from the USAR in accordance with regulatory guidance and he is not entitled to a medical disability retirement and transfer to the Retired Reserve with entitlement to retired pay upon application.  

5.  If the applicant believes his retirement points statement is inaccurate, he should contact his servicing Personnel Actions Branch at (502) 613-5964 or hrc.epmd.fsdpab@conus.army.mi.  

6.  In view of the foregoing, there is no basis for granting either the applicant's or counsel's request.

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)                                         AR20110000091



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ABCMR Record of Proceedings (cont)                                         AR20110000091



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