IN THE CASE OF:	  

		BOARD DATE:	  28 July 2011

		DOCKET NUMBER:  AR20110001240 


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 correction of her discharge from the U.S. Army Reserve (USAR) to show that she was placed in the Retired Reserve rather than being discharged.

2.  The applicant states per the guidance the U.S. Army Human Resources Command (HRC) sent to her congressman she is requesting her discharge from the USAR be revoked.

3.  The applicant provides a letter from HRC to her congressman, an email from her to her congressman, and a memorandum from HRC.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Air Force, the applicant enlisted in the USAR on 15 September 2001 and she held military occupational specialty (MOS) 92F (Special Electronics Devices Repairer).

2.  On 30 January 2006, she was issued a physical profile due to bilateral foot pain due to bilateral foot condition.  Her medical condition was determined to not having been incurred on or aggravated by active duty.   

3.  On 16 February 2006, she received a Notification of Medical Disqualification.  This document informed her that her medical condition disqualified her for retention in the active USAR.  It further informed her she had three options for disposition of her status based on her medical condition:  transfer to the Retired Reserve if eligible, discharge, or she could elect to be considered by a Non-Duty Physical Evaluation Board (PEB).  She acknowledged the notification of her medical disqualification for further retention in the USAR and selected to transfer to the Retired Reserve (which applied to those with 20 qualifying years of service).

4.  On 3 August 2006, an informal Non-Duty Related PEB convened at Fort Lewis, Washington, to evaluate her.  The PEB concluded that her medical condition was "bilateral foot pain due to metatarsalgia bilateral; pes planus with painful bunion and osteoarthritis of the foot joints."  The PEB determined she was unable to perform the physical demands of her primary MOS or common Soldiers' Tasks.  The Board found her physically unfit and referred her case for disposition under Reserve Component Regulations.

5.  On 17 August 2006, after being informed of the recommendations and findings of the PEB, and of her legal rights she concurred and waived a formal hearing of her case.  

6.  On 31 August 2006, U.S. Army Physical Disability Agency forwarded the PEB action to HRC for disposition.

7.  On 18 October 2006, HRC published Orders Number D-10-624689 honorably discharging her from the USAR, effective 19 October 2006, under the authority of Army Regulation 135-178 (Separation of Enlisted Personnel).

8.  On 29 September 2010, in a letter to her congressman, HRC stated that the applicant's former command did not follow guidelines and separated her without retirement eligibility.  A Fifteen Year Letter had been provided to the applicant and she may petition the Army Board for Correction of Military Records to request her discharge be revoked and she be placed in the Retired Reserve.

9.  On 29 September 2010, by memorandum, HRC issued her a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Fifteen Year Letter).  This memorandum notified the applicant that she had completed the required years of service and she would be eligible for retired pay upon application at age 60.

10.  Title 10, USC, section 12731a (Temporary Special Retirement Qualification Authority), which became effective 5 October 1994, also specifies that a member of the Selected Reserve who has completed at least 15 years but less than 20 years of service may be entitled to temporary special retirement qualification when they no longer meet the qualifications for membership in the Selected Reserve solely because the member is unfit because of a physical disability, not due to misconduct, on or after 5 October 1994.  Under this provision, Soldiers who complete at least 15 but less than 20 years of qualifying service and are deemed medically disqualified for retention are eligible for received retired pay at age 60.  The amount of retired pay is based on the total number of qualifying years of service at time of removal rather than the 20 years normally required.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of chapter 61, Title 10, United States Code and Department of Defense Directive (DODD) 1332.18.  It 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.  Chapter 4 states that the PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

The evidence of record shows the applicant has been issued a Fifteen Year Letter and she should have been transferred to the Retired Reserve instead of being discharged from the USAR.  Therefore, she is entitled to correction of her records to show she was transferred to the Retired Reserve effective 19 October 2006.

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 amending Orders Number D-10-624689, dated 18 October 2006 to show she was "transferred to the "Retired Reserve" instead of "discharged."



      _______ _   _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)                                         AR20110001240





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ABCMR Record of Proceedings (cont)                                         AR20110001240



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