IN THE CASE OF:	  

		BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120001381 


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 retirement pay and to personally appear before the Army Board for Correction of Military Records (ABCMR).

2.  The applicant states:

	a.  His total years of military service were 20 not 19 years.  When he was released from active duty on 23 December 2003 he continued serving daily within his unit until 24 January 2004 to ensure he received credit for a good U.S. Army Reserve (USAR) year.  Because of the additional 31 days he served, that gave him the required drill days to complete a good year for 2004 and gave him 20 years of service.

	b.  The U.S. Army Human Resources Command (HRC) previously indicated he denied their offer to return to duty to complete 5 good years within the USAR but this is not true because of Army Regulation 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation), paragraph 7-11 (disposition of the temporary disability retired list (TDRL) Soldier).  He was medically disqualified because of his Department of Veterans Affairs (DVA) compensation rating of 60%.  After receiving his denial letter from the Board he contacted HRC to inquire about his status and he asked about a return to active Reserve status.  He was told he was not allowed to serve on USAR duty to obtain 5 good USAR years and his retirement orders state he was medically disqualified.


	c.  The Army failed to provide him any of the counseling services outlined in Army Regulation 635-40, paragraph 3-8 (counseling provided to the Soldier).

	d.  The Physical Evaluation Board (PEB):

* did not acknowledge his case until February 2005; this was 16 months after the paperwork was forwarded to them
* failed to conduct an examination within 6 months of referral to a PEB or review the Medical Evaluation Board (MEB) and comments from the examining physician

	e.  He met the requirement for retired pay because upon his separation from the Army his DVA rating was 100%.  As of today it is 60% with pending cases to increase the percentage.

	f.  He had no intentions of leaving the Army prior to officially retiring but he was diagnosed with prostate cancer that ultimately led to the Army deciding he was medically disqualified and placed on Reserve Retired list.

3.  The applicant provides:

* Leave and Earnings Statement (LES) for check dated 11 February 2004
* LES for check dated 1 March 2005
* DVA letter, dated 16 July 2007
* Emails from HRC
* Retirement orders
* Extracts from Army Regulation 635-40 
* Memorandum, dated 20 December 2010, pertaining to timeliness of medical evaluation board information
* Officer Record Brief
* His last photograph 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100018585 on 24 February 2011.

2.  The applicant's submissions are new evidence that were not previously considered by the Board and warrants consideration by this Board.


3.  The applicant was born on 12 April 1962.  Having had prior service in the U.S. Marine Corps, he was appointed as a Reserve commissioned officer in the rank of second lieutenant on 5 December 1987.  He entered active duty as a Regular Army (RA) officer on 7 September 1989.  He was honorably discharged from the RA in the rank of major on 23 February 2001 by reason of resignation.

4.  He was appointed as a Reserve commissioned officer on 11 May 2001.  On 22 October 2001, he was ordered to active duty in support of Operation Noble Eagle.  

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24/25 September 2003, shows he developed prostate cancer.  On 9 October 2003, he underwent prostatectomy surgery.

6.  He was honorably released from active duty on 21 October 2003 to the control of the USAR by reason of completing his required service.

7.  On 13 December 2003, he underwent a medical examination and the military doctor found him not qualified for service.

8.  On 22 December 2003, the DVA assigned him a 100% disability rating for adenocarcinoma of the prostate, status post-total retropubic prostatectomy.

9.  On 5 January 2006, HRC, St. Louis, MO (HRC-STL) officials notified the applicant by letter and by email that he had completed 19 years of service in the USAR.

10.  On 17 March 2006, he was notified by memorandum that a review of the medical records he submitted indicated he did not meet retention requirements in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-42c.  Soldiers who are medically disqualified and pending separation for non-duty related (NDR) impairments may request an NDR PEB solely for the purpose of fitness determination.  Soldiers are not eligible for disability benefits for NDR impairments.  He was given four options as follows:

* request an honorable discharge
* request an informal PEB to review his medical records for a final determination of medical fitness for retention
* request reassignment to the Retired Reserve, if completed 20 qualifying years, with eligibility to receive retired pay at age 60
* request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 , if completed at least 15 but less than 20 qualifying years
11.  He elected to be reassigned to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 (15-year retirement) in accordance with Title 10, U.S. Code, section 12731(b).  He indicated that he had at least 15 but less than 20 qualifying years of service for retired pay with the last 6 years having been creditable Reserve service (good years).  However, his last 6 years were not served in the Reserve Component (RC) so he did not qualify for the early retirement (15-year retirement).

12.  He was reassigned to the Retired Reserve by reason of medical disqualification effective 20 April 2006.

13.  He provided DVA documentation that shows he was granted service connection for recurrent left knee strain (10%) effective 7 March 2001.  His overall or combined rating was 60%.

14.  On 7 May 2008, officials at HRC-STL advised him that his records indicated he had completed 19 years of creditable active service and that the remaining 6 years of Selected Reserve service must be good years to qualify for nonregular retirement.  A "good" year is defined as earning a minimum of 50 retirement points during the Soldier's year of service.  The applicant did not meet this requirement during the last 2 years.  Therefore, he did not qualify a 20-year letter.

15.  Records show to accommodate him, HRC officials offered him the option to have his retirement orders revoked and to transfer him to the Individual Ready Reserve (IRR) where he would be assigned to a unit to complete the 2 years needed to obtain a 20-year letter.  He was offered a second option of having his retirement orders revoked and transferring him to a Troop Program Unit (TPU) where he could complete 2 years of service.  He refused both options.

16.  He provided an LES for check dated 11 February 2004 that show his years of service as "19."  He also provided an LES for check dated 1 March 2005 that show his years of service as "20."

17.  His Army Human Resources Command (AHRC) Form 249-2-E (Chronological Statement of Retirement Points), dated 18 May 2006, shows he completed 19 years, 1 month, and 6 days of qualifying service for retirement.  A breakdown of this form is as follows:



From
To
Status
Qualifying For Retirement
Total points
20051205
20060420
USAR
00  00  00
06
20041205
20051204
USAR
00  00  00
19
20031205
20041204
USAR
01  00  00
75
20021205
20031204
USAR
01  00  00
365
20011205
20021204
USAR
01  00  00
365
20010224
20011204
USAR
00  09  11
69
20001205
20010223
RA
00  02  19
81
19991205
20001204
RA
01  00  00
366
19981205
19991204
RA
01  00  00
365
Total


19  01  06
6165
18.  Title 10, U.S. Code, sections 12731 through 12740, authorize retired pay for RC military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. 

19.  Title 10, U.S. Code, section 12731, provides the legal age and service requirements for Reserve nonregular retirement.  It states that a person is entitled upon application to retired pay if the person has attained the applicable eligibility age and has performed at least 20 years of service computed under section 12732 of this title; 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; and in the case of a person who completed the service requirements before 25 April 2005, performed the last 6 years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a Regular Component, the Fleet Reserve, or the Fleet Marine Corps Reserve.  Between 5 October 1994 and 25 April 2005, the law required the member to have performed the last 8 years of qualifying service in a Selected Reserve status.

20.  Title 10, U.S. Code, section 12731b, states 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.


21.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

22.  The National Institutes of Health internet cite medlineplus.gov states prostate cancer usual grows slowly, although other types are aggressive and can spread quickly.

23.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition that was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

24.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his total years of military service were 20 years.  However, evidence shows he only completed 19 years, 1 month, and 6 days of qualifying service for retirement.

2.  It appears HRC tried to accommodate him by offering him the option to have his retirement orders revoked and to transfer him to the IRR where he would be assigned to a unit to complete the 2 years needed to obtain a 20-year letter.  He was offered a second option of having his retirement orders revoked and transferring him to a TPU where he could complete 2 years of service.  However, he refused both options.



3.  His contention the Army failed to provide him any of the counseling services outlined in Army Regulation 635-40 was noted.  However, he was never referred to the PDES.  He wasn't referred to an MEB/PEB and consideration by an MEB/PEB wasn't given to him as an option.  There insufficient evidence to show his prostate cancer (which is normally a slow-growing cancer) was incurred while entitled to basic pay; therefore, it appears he wasn't eligible to be referred to the PDES.

4.  He contends he met the requirement for retired pay because of his DVA rating.  However, the rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  

5.  By law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay.  At the time, he also must have performed the last 6 years of qualifying service in a Reserve Component.  Since the applicant did not complete 20 qualifying years of service or perform the last 6 years of qualifying service in a Reserve Component, there is no basis for granting the applicant’s requested relief.

6.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision of his case.  Therefore, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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 AR20100018585, dated 24 February 2011.



      ___________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)                                         AR20120001381



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ABCMR Record of Proceedings (cont)                                         AR20120001381



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