IN THE CASE OF:	  

		BOARD DATE:  4 September 2012

		DOCKET NUMBER:  AR20110024139 


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, reinstatement in an active Reserve status and to his previous civilian position as a military technician (MT) with entitlement to back pay and restoration of his leave.

2.  The applicant states:

	a.  He served in the U.S. Army Reserve (USAR) for 24 years and worked as an MT for 20 years.  He served in Iraq from 2003 to 2004.  After he returned from Iraq, he was medically discharged in 2007.

	b.  In 2011, he lost his job as an MT because he was told he had voluntarily transferred to the Retired Reserve.  The Department of the Army (DA) is in clear violation of Title 10, U.S. Code, sections 10216 and 10218.

	c.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-12, states that if the Soldier does not agree with the item in the medical board report, he/she will be advised of the appeal procedures.

	d.  Army Regulation 140-315 (Employment and Utilization of USAR Technicians), section 2, paragraph 8e, states that the following guidance will be used in determining whether loss of membership is within or outside the technician's control.

	e.  Actions which result in loss of USAR Selected Reserve membership outside the technician's control are initiated or required by DA.  These include, but are not limited to, failure to meet physical requirements (other than height and weight standards).

	f.  Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) shows he was in compliance with Title 10, U.S. Code, section 10218.  His medical discharge is in compliance with Army Regulation 40-501 (Standards of Medical Fitness), Army Regulation 635-40, his DA Form 3349 (Physical Profile), his DA Form 2808 (Report of Medical Examination), the DA memorandum, and his DA Form 4651 (Request for Reserve Component Assignment or Attachment) which show he was involuntarily medically retired, and the DA orders that state, "Medically Disqualified – Not Result of Own Misconduct."

	g.  He is asking to be reinstated in his civilian MT position.

3.  The applicant provides:

* Operation Enduring Freedom (OEF) orders and certification of deployment dates
* redeployment rights of MT memorandum
* DA Form 3349
* Standard Form 507 (Medical Record)
* medical record review memorandum
* DA Form 2808
* DA Form 4651

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 military records show he enlisted in the USAR on 15 October 1982.  He was appointed as an MT (Heavy Mobile Equipment Repairer) on 7 October 1991.  He was promoted to the position of Heavy Mobile Equipment Repair Inspector on 17 October 2001.

3.  He was ordered to active duty in support of OEF and entered active duty on 24 February 2003.

4.  On 19 November 2003, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 March 2004, shows upon his return from Iraq to Fort Benning, GA, he tested positive for tuberculosis which could result in permanent partial disability.

6.  He was honorably released from active duty on 15 April 2004 by reason of completion of required active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Kuwait/Iraq from 22 April 2003 to 8 March 2004.

7.  Headquarters (HQ), USAR Command, memorandum, dated 13 December 2004, subject:  Reemployment Rights of MT's, states:

	a.  Title 10, U.S. Code, section 10218, requires any MT hired after 10 February 1996 to be separated from employment within 1 year of losing his/her military membership (dual status).  Title 38, U.S. Code, sections 4301-4333, provide reemployment rights to those individuals separating from military service and requesting reentry into government or civilian employment.  Since there are concerns as to which statute takes precedence, DA was requested to provide policy guidance regarding the application of these laws to members of the MT Program.

	b.  HQ, USAR Command, does not believe Congress intended that an MT returning from active duty with a physical disqualification be returned to his/her job under the Uniformed Services Employment and Reemployment Rights Act only to be terminated no later than a year later under the provisions of Title 10, U.S. Code, section 10218.  These individuals, in many instances, could effectively perform their civilian duties as non-dual status technicians and continue to support the USAR mission, although no longer qualified for military retention.

	c.  Until the question of precedence between Title 10, U.S. Code, section 10218, and Title 38, U.S. Code, sections 4301-4333, has been resolved, do not separate from a civilian status those MT's returning from active duty who were militarily separated for physical disqualification.  Further guidance will be provided as soon as DA promulgates the policy.

8.  His DD Form 2808, dated 9 March 2006, shows he was found "not qualified" for service.  This form shows he was diagnosed with sleep apnea.

9.  His DA Form 3349, dated 18 January 2007, shows he was given a permanent physical profile of 313111 for obstructive sleep apnea (line of duty) and left piriformis syndrome (neuromuscular disorders of the sciatic nerve) (non-duty related).  This form was annotated:

* for medical evaluation board in accordance with Army Regulation 40-501, chapter 3, for obstructive sleep apnea
* applicant's non-duty related issue of piriformis syndrome will need a review by the physical evaluation board (PEB)

10.  HQ, 81st Regional Readiness Command (RRC), memorandum, dated 26 January 2007, subject:  Medical Record Review for (Applicant), stated a review of the medical records submitted pertaining to the applicant indicated he did not meet the medical retention requirements in accordance with Army Regulation 40-501, paragraph 3-41c (obstructive sleep apnea), and directed initiation of separation in accordance with Army Regulation 635-40.

11.  He was provided with a notice regarding his medical disqualification and the options available to him as follows:

* reassignment to the Retired Reserve (20-year letter)
* reassignment to the Retired Reserve with early retirement (15-year letter)
* honorable discharge
* informal PEB to review his medical records for a final determination of medical unfitness for retention

12.  On 20 April 2007, he acknowledged receipt of the notice and requested to be discharged from the USAR with an honorable discharge and reassigned to the Retired Reserve.  He also acknowledged his option to request an informal PEB to review his medical records for a final determination of his medical fitness for retention.

13.  Item 5 (Request Assignment/Attachment/Transfer to) of his DA Form 4651, dated 20 April 2007, contains the entry, "Retired Reserves-Involuntary Medical."

14.  Orders 07-117-00010 were issued by HQ, 81st RRC, on 24 April 2007 releasing him from his current USAR assignment by reason of being "medically disqualified – not result of own misconduct" effective 30 May 2007 and transferring him to the Retired Reserve.

15.  His USAR Personnel Command Form 249-2-E (Chronological Statement of Retirement Points), dated 3 July 2007, shows he completed 24 years, 5 months, and 17 days of qualifying service for retirement as of 31 May 2007.

16.  In a memorandum for record, dated 11 August 2010, Army Regulation 15-6 Investigating Officer stated:

	a.  On 10 August 2010 at 1330 hours, he interviewed the applicant on the matter of his medical retirement from the Selected Reserve.  His ailment became an issue while he was on deployment to Iraq during 2006.  He visited sick call because members of his unit told him he sounded as though he might have sleep apnea when he was sleeping.  The medical staff who treated him told him he should take part in a sleep study with his civilian doctor who confirmed he suffered from obstructive sleep apnea.  He then gave documentation of his sleep study results to his unit administrator to be processed for a physical profile.  He was given a "P3" profile and was later declared unfit for medical retention by the 81st RRC Command Surgeon.

	b.  In April 2007, the applicant received his Acknowledgement of Notification of Medical Unfitness for Retention and Election of Options document.  Acknowledging his medical status, he elected to request reassignment to the Retired Reserve for having completed over 20 "good" years in the Selected Reserve.  He explained that he did not elect to undergo an informal PEB because he assumed that the PEB was only if he wanted to challenge the determination of the doctors.

	c.  The applicant did not contest the fact that he had sleep apnea and his command sergeant major advised him that he needed to get out of the USAR since he could not perform his military occupational specialty (MOS) as a 74D (Chemical, Biological, Radiological, and Nuclear Specialist) because his continuous positive airway pressure mask would interfere with the wear of his mission-oriented protective posture gear.  Furthermore, he was informed that his retirement would be his best option.

	d.  The applicant said that he also asked some of the other MT's and the general consensus was that he would still meet his conditions of employment for the MT Program if he elected to transfer to the Retired Reserve as a result of his medical condition because he was "grandfathered" under the old law.
17.  A board of officers convened on 17 August 2010 and determined the applicant did not lose his membership in the Selected Reserve as a result of a combat-related disability and the reason was a result of action that was not under his own control.  The board determined that:

	a.  The applicant was hired in the MT Program prior to 10 February 1996 and was not a non-duty status technician (NDST).  He was in compliance with the section 10218 requirements because he had not reached age 60 and his time in civilian service was insufficient for annuity eligibility.  His sleep apnea was outside of his control and was a condition that disqualified him from military service.  Due to his medical disqualification and the belief that his medical condition prevented him from performing the duties of his MOS, he elected reassignment to the Retired Reserve.

	b.  His election was also influenced by the advice of his battalion command sergeant major who recommended his retirement because of the hindrance his condition imposed on his job performance.  He complied with the conditions and lost his Selected Reserve membership as a result of events outside of his control.

18.  The board recommended his retention in his MT position as a Heavy Equipment Inspector and that the 81st RSC should provide all MT's and supervisors of the same with an information meeting or training to better disseminate a clear understanding of the program's requirements.

19.  In a HQ, USAR Command, memorandum, dated 11 February 2011, subject: 
Final Action Pursuant to an Army Regulation 15-6 Investigation to Determine the Applicability of Combat-Related Injury (CRI) – NDST, the Deputy Chief Executive Officer stated she reviewed the results of the applicant's Army Regulation 15-6 investigation.  She concurred with the findings that the applicant's injury was not combat related.  She non-concurred with the finding that he met the requirements for retention as an NDST in that he voluntarily elected transfer to the Retired Reserve in lieu of the PEB process.  Since his separation from the Selected Reserve was not the result of a combat-related disability, he could not be retained as a CRI-NDST under the provisions of Title 10, U.S. Code, section 10216(g).  In accordance with the statutory conditions of his employment, he must be removed from his MT position no later than 22 February 2011.

20.  On 26 July 2011, he was advised that he did not meet the preliminary eligibility requirements for combat-related special compensation since he had not reached age 60.  He will reach age 60 on 23 September 2024.

21.  In a letter in response to a Member of Congress's inquiry of 25 March 2011, the Chief of Staff, USAR Command, stated:

	a.  Army Regulation 140-315 states that MT's hired after 8 December 1983 are required to maintain USAR unit membership as a condition of employment.  Loss of membership for reasons within their control constitutes failure to meet this condition of employment.

	b.  The applicant signed a form electing to transfer to the Retired Reserve effective 30 May 2007 because he had 20 qualifying years for retirement.  The applicant's decision to voluntarily elect to transfer to the Retired Reserve instead of undergoing the medical board process rendered his loss of membership self-initiated and within his control.

	c.  This was not discovered until Army Regulation 15-6 investigations were done on personnel who were medically discharged to determine those who could be categorized as CRI-NDST's.  Although he was diagnosed with a medical condition, because he was an MT who could not voluntarily relinquish Selected Reserve membership, his only option was to go before a PEB and be involuntarily transferred to the Retired Reserve.

	d.  MT's who voluntarily relinquish dual status or are separated from the Selected Reserve for reasons within their control are subject to removal immediately upon notification that dual status has been lost.  The applicant can seek employment with other Federal agencies not requiring Selected Reserve membership or apply for other DA civilian positions.

22.  In an advisory opinion, dated 11 July 2012, the Deputy Chief Executive Officer, USAR Command, stated:

	a.  The applicant was appointed as a Heavy Mobile Equipment Repairer, Wage Grade (WG)-5803-09, effective 7 October 1991.  He was promoted to the position of Heavy Mobile Equipment Repair Inspector, WG-5803-10, effective 17 October 2001.  Both positions were dual-status MT positions which required concurrent membership in the Selected Reserve as a condition of employment.

	b.  On 26 January 2007, an MEB determined that the applicant did not meet the medical retention standards of Army Regulation 40-501 based on a diagnosis of obstructive sleep apnea.  The applicant was presented with the option of transferring to the Retired Reserve in lieu of disability processing under the provisions of Army Regulation 635-40 or evaluation by a PEB.  The applicant elected to voluntarily transfer to the Retired Reserve effective 30 May 2010.  He didn't pursue the PEB that could have resulted in his retention in the Army Reserve and the ability to maintain conditions of employment.

	c.  Consistent with the statutory requirements of Title 10, U.S. Code, section 10216(g), the Army Reserve also conducted an investigation to determine if the applicant's medical condition was combat related.  Based on the results of that investigation, the Army Reserve determined that the condition was not combat related and consistent with Army Regulation 40-501, chapter 8, that his transfer to the Retired Reserve was within his control.  As a result, the Army Reserve removed the applicant from his Federal civilian employment as an MT effective 16 March 2011.  Following the applicant's appeal of that decision, an administrative judge of the Merit Systems Protection Board (MSPB) affirmed the agency's removal on 3 November 2011.  On 30 November 2011, the applicant petitioned for review of that decision to the MSPB.  The petition for review is pending with the MSPB.

	d.  As a preliminary matter, it is evident from applicant's request for correction of military records that he is attempting to overturn his removal from civilian employment and therefore, records maintained by the Office of Personnel Management (OPM).  As provided in Title 5, U.S. Code, chapter 75, the jurisdiction for review of adverse actions regarding federal civilian employment rests with the MSPB.

	e.  The memorandum, dated 13 December 2004, regarding the conflict between Title 10, U.S. Code, section 10216, and the Uniformed Services Employment and Reemployment Rights Act, does not apply to the applicant.  That memorandum applied only to MT's hired after 10 February 1996.  The applicant was appointed to his position in 1991 and was governed by Army Regulation 140-315 which states that MT's hired after 8 December 1983 are required to maintain Selected Reserve status as a condition of employment.  Loss of membership for reasons within their control constitutes failure to meet this condition of employment.  The conflict identified in the 2004 memorandum was resolved by the addition of paragraph (g) to Title 10, U.S. Code, section 10216.

	f.  The applicant may have faced a difficult choice and been misguided when he elected transfer to the Retired Reserve in lieu of PEB processing.  Nonetheless, the decision was within his control and his transfer to the Retired Reserve was voluntary.  Although he was diagnosed with a medical condition which could have been unfitting under the provisions of Army Regulation 40-501, no determination was made that he could not be retained under Army Regulation 635-40.  Consistent with Army Regulation 140-315, his election to transfer to the Retired Reserve in lieu of PEB processing was within his control.  He voluntarily relinquished his Selected Reserve membership which precipitated his removal from civilian employment as a dual-status MT.

23.  On 13 July 2012, the applicant was provided a copy of this advisory opinion for acknowledgment and/or rebuttal.  In his rebuttal received on 7 August 2012, he stated:

	a.  He would like to make it clear that at no time did he voluntarily relinquish his membership in the Selected Reserve.  The Army regulation dictated his actions.  In his effect, his DA Form 4651 contains the entry, "Retired Reserves-Involuntarily Medical."  This form also shows he did not meet medical retention requirements in accordance with Army Regulation 40-501, paragraph 3-41c (obstructive sleep apnea), and began the process for separation in accordance with Army Regulation 635-40.  This plainly shows the Department of the Army initiated his separation, not him.  This memorandum is from the Command Surgeon, 81st Regional Readiness Command.

	b.  Army Regulation 635-40, paragraph 4-12, states the PEB Liaison Officer will advise the Soldier of the results of the MEB.  The Soldier will be given the opportunity to read and sign the PEB proceedings.  If the Soldier does not agree with any item in the medical board report, he/she will be advised of the appeal procedures.  He did not agree with the results of the MEB.

	c.  He again provided a copy of his DA Form 4652.  He also cited and provided a copy of Army Regulation 635-40, chapter 4, section II, and his South Carolina Department of Employment and Workforce claims determination.

24.  Army Regulation 140-315 prescribes the procedures for the separation of MT's by the USAR.  Paragraph 8d(2) states that for individuals appointed after 8 December 1983, MT's are required to maintain continuing membership in the USAR unit in which employed or be a member of any element of the USAR Selected Reserve as a condition of employment.  Failure to meet this military obligation constitutes failure to meet the condition of employment.  Actions which may result in loss of USAR Selected Reserve membership within the technician's control include, but are not limited to, voluntary transfer to the Retired Reserve prior to a mandatory removal date.

25.  Army Regulation 140-315, paragraph 8(2)(b), states that actions which result in loss of USAR Selected Reserve membership outside the technician's control are initiated or required by DA include, but are not limited to, failure to meet physical requirements (other than height and weight standards).

26.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assignments, attachments, details, and transfers of Reserve Component Soldiers.  Paragraph 6-4 states a Soldier who is not receiving retired pay and is otherwise qualified and not removed from active status by board action or operation of law may be transferred to the Individual Ready Reserve or an appropriate unit or position vacancy.  Retired Reserve members who are removed from active status by board action or operation of law are ineligible for transfer to the Ready Reserve.  Retired Reserve Soldiers who were removed from active status by operation of law and whose transfer to the Ready Reserve would result in their immediate removal therefrom by operation of law are also ineligible to transfer to the Ready Reserve.

27.  Army Regulation 140-10, chapter 7, states that 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.  Paragraph 7-8a provides for removal of Soldiers when found medically unfit for retention unless a waiver is granted in accordance with Army Regulation 40-501.

28.  Title 10, U.S. Code, section 10216 states that MT's hired after 10 February 1996 who subsequently lose their membership in the Selected Reserve may only retain their jobs if they lost the Selected Reserve membership as a result of a combat-related disability.

29.  Title 10, U.S. Code, section 10218, required an NDST to be separated if he/she reaches age 60 or becomes eligible for an unreduced annuity.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was hired as a Heavy Equipment Repairer in the MT program on 7 October 1991.  He was promoted to the position of Heavy Mobile Equipment Repair Inspector on 17 October 2001.  Both positions were dual-status MT positions which required concurrent membership in the Selected Reserve as a condition of employment.

2.  He served in Kuwait/Iraq from April 2003 to March 2004.  In January 2007, he was found not qualified for service after being diagnosed with obstructive sleep apnea.  The MEB recommended separation processing in accordance with Army Regulation 40-501.

3.  He was provided with a notice of his medical disqualification for retention with options.  At the time, he also acknowledged his option to request an informal PEB for a final determination of his medical fitness for retention.  On 20 April 2007, he requested to be honorably released from the USAR and reassigned to Retired Reserve.  Orders were issued on 24 April 2007 reassigning him to the Retired Reserve effective 30 May 2007.

4.  Upon completion of an Army Regulation 15-6 investigation in August 2010, a board of officers determined that his condition was not combat related and his transfer to the Retired Reserve was within his control.  As a result he was removed from his federal civilian position as an MT on 16 March 2011.  He appealed this decision and on 3 November 2011 the MSPB affirmed the agency's removal of the applicant from his MT position.

5.  While it is unfortunate the applicant was not clear about the program's requirements in accordance with Army Regulation 140-315, his voluntary election to transfer to the Retired Reserve instead of undergoing the medical board process made his loss of Selected Reserve membership self-initiated and within his control.  Because he was an MT who could not voluntarily relinquish Selected Reserve membership, his only option was to go before a PEB and be involuntarily transferred to the Retired Reserve.  He didn't pursue the PEB that could have resulted in his retention in the Selected Reserve and the ability to maintain conditions of employment.

6.  There appears to be no error or injustice in his separation process from the USAR.  His contentions and the documents he submitted do not demonstrate an error or injustice in the disposition of his case.  Since his separation was not the result of a combat-related disability, he could not be retained in the MT Program under the provisions of Title 10, U.S. Code, section 10216.  He has provided insufficient evidence to show he was improperly removed from his MT position.

7.  Further, the Board has no jurisdiction over records maintained by OPM, the jurisdiction for review of his removal from civilian employment rests with the MSPB.  The petition for review is pending with the MSPB.

8.  The memorandum, dated 13 December 2004, applied only to MT's hired after 10 February 1996.  As he was initially appointed to his MT position on 7 October 1991, he was governed by Army Regulation 140-315.  In accordance with this regulation, all MT's hired after 8 December 1983 are required to maintain Selected Reserve status as a condition of employment.  Loss of membership for reasons within their control constitutes failure to meet this condition of employment.

9.  His decision to transfer to the Retired Reserve was within his control and voluntary.  He did not request a PEB and no determination was made that he could not be retained under the provisions of Army Regulation 635-40.  His voluntary relinquishment of his Selected Reserve membership precipitated his removal from civilian employment as a dual-status MT.

10.  In accordance with Army Regulation 140-10, a Soldier who is not receiving retired pay and is otherwise qualified and not removed from active status by board action or operation of law may be transferred to the Individual Ready Reserve or an appropriate unit or position vacancy.

11.  In view of the foregoing, there is an insufficient evidentiary basis for granting him the requested relief.

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)                                         AR20110024139



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ABCMR Record of Proceedings (cont)                                         AR20110024139



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