BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110010372 


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 reconsideration of his request for his pay grade to be changed from lieutenant colonel/O-5 to colonel/O-6 on the Retired List in order for him to receive retirement pay at the O-6 level.

2.  The applicant states his request for reconsideration is based upon his contention that as a result of his medical condition and associated treatment from October 1999 until March 2003, his mental capacity was demised and his ability to focus and concentrate was impaired; as is supported by letters from his physician of 11 years and a gastroenterologist who also treated him.  The applicant states that while on active duty for special work in September 1996, a test identified blood in his stool sample.  Following additional testing, his doctor placed him on large doses of two antibiotics and referred him to see a gastroenterologist.  As a result, he was diagnosed with ulcerative colitis due to an infection of the colon and the doctor told him he would be taking Pentasa for the rest of his life.

3.  The applicant states a change in his civilian employment resulted in his transfer from the Alabama Army National Guard (ALARNG) to the U.S. Army Reserve in 1999.  He contacted his personnel management officer (PMO) in St. Louis, MO after receiving information that he was selected by the 1999 Colonel Promotion Board.  The PMO indicated she would handle everything and for him not to worry.  The applicant was promoted to colonel in March 2000.  He states all the documents he received after that date were addressed to him as colonel.

4.  The applicant attests he had several flare-ups due to ulcerative colitis from 1999 until March of 2003.  As a result of his first flare-up in October 1999, he had to give up his civilian job the following month due to his condition.  On 7 October 2001 the Social Security Administration found him to be disabled effective 21 July 2000.  He states on 24 January 2003 he had an ileostomy operation to correct his condition.

5.  He contends he does not remember receiving the 1 October 2001 reassignment orders releasing him from the USAR and transferring him to the Retired Reserve and he attests the first time he saw these orders was 10 March 2010.  

6.  The applicant provides:

* a 4-page self-authored statement (previously considered with his first application)
* two letters from medical doctors

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100012498, on 9 November 2010.

2.  Having previously served in the Regular Army, the applicant was appointed as a second lieutenant in the ALARNG on 2 February 1997.  He served in a variety of assignments and progressed through the ranks to the rank/pay grade of lieutenant colonel/O-5.

3.  On 25 May 1999, the applicant was separated from the ALARNG and transferred to the USAR Control Group (Individual Ready Reserve (IRR)).  He had completed 27 years and 1 day of qualifying service for nonregular service retirement pay.

4.  On 31 May 2000, the applicant was promoted to colonel/O-6 in the USAR.

5.  Orders C-10-128534 issued by USAR Personnel Command on 9 October 2001, show the applicant was released from the USAR Control Group (Reinforcement) and assigned to the Retired Reserve by reason of non-participation.  His USAR Personnel Command Form 249-E (Chronological 

Statement of Retirement Points) shows he attained only 15 membership points for his retirement years ending (RYE) 1 June 2000 and 1 June 2001.

6.  Orders P09-910088 issued by U.S. Army Human Resources Command on 15 September 2009, placed the applicant on the Retired List in the grade of colonel/O-6 effective 15 February 2010.  These orders were apparently erroneously issued to show his retired rank as colonel.

7.  The applicant provides two letters from medical doctors:

	a.  In a letter dated 21 March 2011, Dr. P______e, a physician at Digestive Disease Specialists of Northeast Alabama stated the applicant was a patient of his "from 1997 through 2002.  During that time he had a fairly severe and resistant ulcerative colitis.  He was evaluated at the University of Alabama at Birmingham hospital and hospitalized on more than one occasion.  He was treated with a number of medications.  He spent much of that time with a significant anemia and suffered many of the consequences of a chronic nearly-debilitating illness.  Ultimately, in 2003 he underwent total colectomy with placement of a permanent ileostomy and since that time he has been quite well.  Although I did not assess him specifically for the ability to perform specific tasks, it is my opinion that his significant battle with ulcerative colitis was very debilitating and impactful on his ability to perform up to his usual standards."

	b.  In a letter dated 14 April 2011, Dr. A______a, a physician at 1st Care Medical Clinic, Gadsen, AL stated the applicant "has been under my care for about 11 years.  During this time he was diagnosed with ulcerative colitis amongst other medical conditions.  The ulcerative colitis was complicated by recurrent lower G.I. (gastrointestinal) bleed and anemia.  He was evaluated by multiple gastroenterologists, and also at the University of Alabama at Birmingham hospital Department of Gastroenterology.  He was admitted several times and was placed on multiple immunosuppressant agents for several years.  During this time, his ability to perform common daily activities including decision making, were impaired.  He eventually underwent a total colectomy with placement of a permanent ileostomy and his condition has improved since then."

8.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) states an officer (other than a commissioned WO) or enlisted Soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List).  An officer or enlisted Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date will be removed from active status.  Soldiers removed from active status will be 

discharged or transferred to the Retired Reserve.  Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible.

9.  Title 10, U.S. Code, section 1406, states a person who is entitled to non-regular service retirement pay is entitled to retired pay at the rate of the highest grade held satisfactorily by the person at any time in the Armed Forces.  The highest grade in which a person served satisfactorily as an officer shall be determined in accordance with section 1370(d) of this title.

10.  Title 10, U.S. Code, section 1370(d), states:

	a.  In order to be credited with satisfactory service in an officer grade above major, a person must have served satisfactorily in that grade (as determined by the Secretary of the Military Department concerned) as a Reserve commissioned officer in an active status or in a retired status on active duty for not less than 3 years.

	b.  A person who has completed at least 6 months of satisfactory service in grade may be credited with satisfactory service in the grade in which serving at the time of transfer or discharge, notwithstanding failure of the person to complete 3 years of service in that grade, if that person is transferred from an active status or discharged as a Reserve commissioned officer because the person no longer meets the qualifications for membership in the Ready Reserve solely because of a physical disability, as determined, at a minimum, by a medical evaluation board and at the time of such transfer or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his retired grade should be colonel/O-6 instead of lieutenant colonel/O-5 and that he was unaware he had been transferred to the Retired Reserve until March 2010 were carefully considered and determined to lack merit.

2.  As a result of the applicant's failure to attain at least 50 points during his RYEs 1 June 2000 and 1 June 2001, he was required by regulation to be removed from an active status by discharge or transfer to the Retired Reserve, if requested.  In view of the fact he was not discharged, it is evident that he requested transfer to the Retired Reserve.  




3.  The applicant's condition of ulcerative colitis and ultimate surgery are duly noted as are the opinions rendered by his doctors.  However, his record is void of any evidence and he has not provided any substantive evidence that shows he was unable to perform the duties of his rank based on his medical condition.  Additionally, there is no substantive evidence showing he was referred to a medical evaluation board at the time of his transfer to the Retired Reserve.  His major surgery was not performed until 2 years after his transfer to the Retired Reserve and there is no evidence showing he attempted to inform the Army that he had a debilitating medical condition which impaired his ability to perform his duty and attain at least 50 points annually in order to be retained in an active status.

4.  Title 10, U.S. Code, section 1370(d), states that in order to be retired in a grade above major, a person must serve in that grade in an active status for 3 years.  An exception is provided for a person who no longer meets the qualifications for membership in the Ready Reserve solely because of a physical disability.

5.  The applicant did not fulfill the statutory requirement to serve in the grade of colonel for 3 years in an active status in order to be retired in that grade.  Additionally, he was not transferred to the Retired Reserve as a result of non-participation not because of a physical disability.  Accordingly, he should have been assigned to the Retired Reserve and placed on the Retired List in the grade of lieutenant colonel/O-5.

6.  In view of the above, the applicant is only entitled to nonregular retired pay at the level of lieutenant colonel/O-5.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100012498, dated 9 November 2010.



      _______ _ 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)                                         AR20110010372





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ABCMR Record of Proceedings (cont)                                         AR20110010372



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