IN THE CASE OF:	  

		BOARD DATE:  15 November 2012

		DOCKET NUMBER:  AR20120007737 


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, that his discharge from the United States Army Reserve (USAR) be voided and he be transferred to the Retired Reserve or retired by reason of permanent disability.

2.  The applicant states that he never asked to be discharged from the Individual Ready Reserve (IRR) and he submitted the proper documents to continue to remain in the IRR to his branch officer.  He goes on to state that after his return from Iraq and out-processing at Fort Stewart, Georgia he was told that he would remain in the IRR.  He continues by stating that he performed his job honorably and got a good evaluation but found that he was discharged after his return home.  He also states that he believes he was discharged because he had some service connected problems identified during out-processing and because he had 18 years of service.  He further states that he was not informed as to why he was being discharged; he intended to remain in the IRR until he was able to retire.  He also states that he has a 70% disability rating.

3.  The applicant provides a copy of his notification of nonselection for promotion after a second consideration and his Reserve Status Statement and Election of Options. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s official records, though somewhat incomplete, show that he enlisted in the Wisconsin Army National Guard (WIARNG) on 22 February 1992.  He completed his training as a heavy anti-armor infantryman and continued to serve until he was honorably discharged on 20 May 1995 to accept a commission. 

2.  On 21 May 1995, he was commissioned as an armor branch second lieutenant and on 5 August 1995 he was ordered to active duty for a period of 
3 years.  He was promoted to the rank of first lieutenant (1LT) on 5 August 1997 and on 5 August 1998 he was honorably released from active duty (REFRAD) and he was transferred to a WIARNG unit as an Army National Guard 1LT. 

3.  On 4 October 2001, he was promoted to the rank of captain.  On 5 October 2003, he was honorably discharged from the WIARNG and was transferred to the USAR Control Group (Reinforcement).

4.  On 18 December 2006, officials at the U.S. Army Human Resources Command in St. Louis, Missouri sent the applicant an email notifying him that according to their evidence he was not military education qualified for promotion to the rank of major.  He was asked to provide proof of his military education (MILED), request a waiver of MILED, or finish a school quickly.  The applicant had not completed the Career Captain’s Course (formerly known as the Officer Advanced Course).

5.  The applicant was ordered to active duty in support of Operation Iraqi Freedom on 19 April 2009 for a period not to exceed 400 days.  The applicant’s official records do not contain a separation document showing the period of his deployment; however, they do contain an Officer Evaluation Report ending on 
31 December 2009 indicating he served as a battle captain in Iraq.  That evaluation report also notes the applicant needed to complete the Career Captain’s Course before being considered for promotion to major.

6.  In August 2009, a memorandum was dispatched to the applicant informing him that he had been nonselected twice for promotion to the rank of major.  He was also advised that he must be separated from the service not later than the first day of the seventh month following the President’s approval of the board results unless he had a service obligation, he was eligible for and requested transfer to the Retired List, or he had been credited with 18 but less than
20 years of satisfactory service for retired pay purposes.  The applicant submitted an election form requesting retention to complete 20 qualifying years of service. 

7.  On 18 March 2010, orders were published honorably discharging him from the USAR.  The Chronological Statement of Retirement Points, dated 2 May 2010, that is contained in his official records show that he completed 12 years, 
7 months, and 14 days of qualifying service for retirement.  However, that statement does not reflect his active service during his last deployment. 

8.  A review of the applicant's official records failed to show any evidence to suggest that the applicant was not deemed medically fit for separation or retention at the time of release from active duty in 2010.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides, in pertinent part, that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. 

10.  Title 38, U.S. Code, sections 310 and 331, permits the Department of Veterans Affairs (VA) to award compensation for a medical condition which 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

11.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the physical evaluation board hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

12.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, U.S. Code, Chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted for each year of service that an individual earns 50 or more retirement points.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was unjustly discharged without any explanation as to the reason for his discharge has been noted and appears to lack merit.  The applicant provided the memorandum with his application that clearly notified him that he had been non-selected twice for promotion and he was required to be discharged.  Additionally, he was fully aware that he was required to complete the military education requirements for promotion to major.

2.  While the applicant has been affiliated with the Reserve Components (USAR and WIARNG) over a period of 18 years, he did not complete 18 qualifying years of service during that same period.  Qualifying years of service are years in which at least 50 points during each retirement year are earned, and the applicant has at least 6 years which do not meet the criteria.  Accordingly, he did not meet the 18-years of creditable service criteria for retention to 20 years.

3.  While it is conceded that his retirement points summary may be in error, it is the applicant’s responsibility to review that statement and provide documents to the appropriate officials to correct any errors that may exist.

4.  In regard to the applicant’s contention that he was discharged after his deployment because of service-connected problems discovered during out-processing, it is noted that the applicant was released from active duty (REFRAD) at Fort Stewart, Georgia and he was discharged by the U.S. Army Human Resources Command at St. Louis, Missouri.

5.  Additionally, the applicant has failed to show through the evidence of record and the evidence submitted with his application that he was not fit for retention/separation at the time of REFRAD or that he should have been processed under the Physical Disability Evaluation System (PDES). 

6.  Therefore, it appears that he was properly REFRAD and subsequently discharged from the USAR due to being non-selected twice for promotion to the rank of major and absent evidence to the contrary, there appears to be no basis to grant his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _  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)                                         AR20120007737



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ABCMR Record of Proceedings (cont)                                         AR20120007737



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