IN THE CASE OF:	  

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140014369 


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 his records to show he was medically retired from the U.S. Army Reserve (USAR) vice honorably discharged.

2.  The applicant states:

	a.  In 1994, he was denied reenlistment in the USAR because of his service-connected disabilities.  When he turned 60 in December 2012, he filed for his nonregular retirement and has been fighting ever since to get his retired pay.  He was denied several times because forms were not filled out, he did not meet the 15-year requirement, or because he was in the Individual Ready Reserve (IRR). 

	b.  In 1994, he was given active duty orders to take a physical.  He was subsequently medically disqualified for active duty because of all his service-connected disabilities and assigned to the Retired Reserve.  When he received those orders, he thought it was a medical retirement and that he met all the requirements for retirement.

	c.  He went up the chain of command with no results and finally got his Senator to check on his retirement.  A letter was received back and he was directed to file an application with the Army Board for Correction of Military Records (ABCMR).  After he checked regulations, he believes he should have been sent before a medical evaluation board (MEB) in 1994.  He is providing his medical records and the correspondence he received in dealing with this issue.


3.  The applicant provides:

* six letters, dated between 23 November 1988 and 23 June 2014
* two orders, dated 16 June 1994 and 28 June 1995
* a certificate, dated 28 June 1995
* DD Form 2656 (Data for Payment of Retired Personnel), dated 3 December 2012
* three self-authored letters, dated between 22 September 2013 and 6 May 2014  
* an email, dated 17 January 2014
* one page of Department of Defense Directive (DODD) Number 1332.18
* three pages of DOD Instruction (DODI) Number 1332.38
* a page from mil.connect titled My Profile
* 104 pages of medical records/documents, dated between 27 January 1977 and 21 October 1993

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on X December 1952.  Having had prior active service, he enlisted in the Regular Army (RA) on 17 March 1978 and he held military occupational specialties (MOS) 68G (Aircraft Structural Repairer) and 03C (Physical Activities Specialist).  

2.  He provides a Standard Form (SF) 513 (Consultation Sheet), dated 4 December 1978, wherein it shows he was seen at the troop medical clinic on that date for a complaint of lower back pain (LBP) that radiated down both legs.  The examining physician noted, in part, the applicant originally noted LBP 2 years earlier when playing racquetball and again in August 1978.  On 1 December 1978, his back went out again while playing racquetball.  His impression was recurrent lumbar sprain.  

3.  On 15 July 1982, he was assigned to the 568th Transportation Company, Fort Wainwright, AK.

4.  His record contains a:

	a.  DA Form 3349 (Physical Profile Board Proceedings), dated 27 December 1982, wherein it shows he had been diagnosed with bilateral high frequency sensor neural hearing loss and had a permanent profile of 2 in the hearing section of the PULHES.  The board found he should return to duty with limitations, no exposure to high intensity noise or weapons firing without the use of ear protection fitted by medical personnel.

	b.  Letter, undated, subject: Waiver of Medical Condition - Physical Profile Record, wherein the applicant stated he understood he had a permanent profile designated on 27 December 1982 that indicated he had a medical conditions which may be a limiting factor in performing his duties.  However, he believed he could perform the duties required of his MOS and grade subject to verification by his commander.  His brigade commander concurred with the waiver and he and the applicant signed the form on 18 August 1983.  

5.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 October 1983.  On 20 March 1984, he was assigned to the 222nd Aviation Battalion, Fort Wainwright.

6.  He provides:

	a.  Several SF 600s (Chronological Record of Medical Care) that shows throughout his military service he was treated on several occasions for complaints of chronic LBP and stomach pains.

	b.  An SF 600, dated 16 August 1984, wherein it shows he was treated at the battalion's flight surgeon's office on that date for a complaint of acute abdominal cramping, vomiting, and dizziness.  The examining physician noted the applicant had a history of these episodes occurring months ago and he had been taking antacids without relief.  An upper gastrointestinal (GI) series was ordered.

	c.  An SF 600, dated 28 August 1984, wherein it shows he was treated at the flight surgeon's office on that date for a complaint of stomach cramps.  The examining physician noted the applicant's upper GI series was normal and there was no indication of hiatus hernia or reflux.  He was diagnosed with gastritis and prescribed medication.  

	d.  An SF 600, dated 11 April 1985, wherein it shows he was treated at the flight surgeon's office on that date for a complaint of LBP for the past 2 weeks and stated he had the problem on and off for the past 10 years.  The examining physician noted the applicant had pointed to pain in the 1st sacral area and stated the pain shot down both legs.  The physician noted his gait was normal, his lumbar motion was normal except for pain when returning from forward bending, he could go up on his toes and walk on his heels.  He diagnosed him with LBP - acute exacerbation, prescribed physical therapy and medication, and told him to return in 2 weeks as needed.

7.  He was honorably discharged from the RA on 1 July 1985 in the rank of SSG by reason of expiration of his term of service.  He enlisted in the USAR Control Group (Reinforcement).  He completed 7 years, 3 months, and 15 days of net active service during this period of service and had a total of 13 years and 18 days of active duty service.  His PULHES at the time of his discharge was 111211.

8.  Item 27 (Reenlistment (RE) Code) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service contains the entry "RE-1A" indicating he was fully eligible to reenlist at that time.

9.  The applicant provides:

	a.  An x-ray report, dated 11 April 1986, wherein a radiologist with the Fairbanks Memorial Hospital, Fairbanks, AK, noted his chest x-ray, dated 7 April 1986, was normal.  The x-ray of his lumbar spine showed hypertrophic changes involved multiple lumbar levels.  The L4-L5 disc space appeared slightly narrowed otherwise the lumbar spine alignment was otherwise unremarkable.  There was no apparent acute bony injury involving the lumbar spine.  His upper GI series, dated 9 April 1986, showed the stomach and esophagus were normal. There were slightly accentuated mucosal folds in the duodenal bulb, the C-loop was normal, and the treitz ligament was in a normal position.  A bone scan, dated 11 April 1986, showed there was normal visualization of the axial and appendicular skeleton; it was a normal bone scan.

	b.  An operation report, dated 10 April 1987, wherein it shows he had surgery at the Fairbanks Memorial Hospital on that date and underwent a laminotomy with removal of a large extruded sequestered disc fragment.  
	c.  A medical record, dated 17 April 1987, wherein it shows he was seen at the Fairbanks Memorial Hospital on that date for a follow up to his surgery.  The examining physician noted at the time of the surgery, the disc fragment (that was removed) did not appear as a 1975 old disc fragment.  Instead it was a fresh disc fragment and consistent with being within the last 6 months or more recent.  The applicant had stated that last year all of a sudden he had increased pain at work after moving the lane machines in the bowling alley.  The physician stated he felt that the consistency of the disc fragment was consistent with an injury occurring at that time (emphasis added).  
	d.  A medical record, dated 16 May 1988, wherein it shows he was seen at the Fairbanks Memorial Hospital on that date for a follow up to his surgery.  The examining physician noted the applicant stated he felt his back had not continued to heal as he had hoped it would.  He still had persistent pain in the lower extremities with decreased feeling in the lateral and plantar aspect of the right foot.  

	e.  A letter from the Veterans Administration (VA), dated 23 November 1988, wherein it stated they considered the increase in his service-connected back condition from 20% to 60% to be a substantial grant of benefits sought on appeal.  Accordingly, they would withdraw his appeal in the absence of a reply to the contrary within 30 days.

	f.  An SF 88 (Report of Medical Examination), dated 6 December 1988, wherein it shows he underwent a physical examination on that date and was found to be qualified for retention in the USAR.  The examining physician noted the applicant had chronic LBP and recommended a consultation to the orthopedic clinic.

	g.  An SF 513 (Consultation Sheet), dated 28 April 1989, wherein it shows he was seen by an orthopedic doctor on that date.  The examining physician noted the impression was probable L5-S1 radiculopathy and the applicant was presently dealing with radicular pain through treatment but would undoubtedly require surgery in the future if his symptom persisted or worsened.  He further noted given his past medical and surgical history and present condition that consideration for a possible MEB should be given.  It was doubtful that his condition/complaints were compatible with continued aggravation of military activities. 

	h.  An operation report, dated 9 August 1989, wherein it shows he had surgery at the Fairbanks Memorial Hospital on that date and underwent a decompressive laminotomy L4-5 and L5-S1 levels with removal of disks at both levels and removal of scar tissue at the L5-S1 level.  

	i.  A medical report, dated 27 October 1992, wherein it shows he seen at Fairbanks Memorial Hospital on that date for a follow up to his back pain.  The examining physician stated the applicant originally had difficulty back in 1975 and the VA would like him to be evaluated at this time.  He had been able to work but was now going back to school.  He was not able to do the heavy work that he could before and had two surgeries.  He complained of numbness in the back of his right leg.  He had persistent pain, weakness, and sensory deficit post disc and recurrent disc.  He had improved post decompression laminectomy but has not returned to normal as expected.  His impairment using the American Medical Association (AMA) Guide would be 25% to the whole body.

10.  It appears that in 1994 he underwent another periodic physical examination and was subsequently medically disqualified for further service in the USAR.  

11.  Orders D-06-900664, dated 16 June 1994, issued by the U.S. Army Reserve Personnel Center (ARPERCEN), honorably discharged him from the USAR effective 16 June 1994.

12.  He provides a letter to the ARPERCEN Physical Review Board (PRB), dated 16 March 1995, from his civilian physician, wherein his physician stated the letter was in response to a request from the PRB concerning his back condition.  The physician stated, in part, the applicant's medical history included a laminectomy and discetomy performed in 1987 and additional back surgery in 1989.  Because of persistent symptoms, he is constantly experiencing paresthesias in his right lower extremity and causes him to occasionally significantly modify his work activities.  He is unable to sit for prolonged periods and cannot bend over and pick up any heavy weights.  

13.  Orders C-08-541338, dated 28 June 1995, issued by ARPERCEN, released him from the USAR by reason of medically disqualified for active duty and assigned him to the Retired Reserve effective 28 June 1995.

14.  The applicant turned age 60 on X December 2012.  He subsequently filed an application for receipt of retired pay.  On 25 November 2013, the U.S. Army Human Resources Command (HRC) denied his request and stated he did not meet the requirements for retired pay.

15.  His AHRC Form 249-E (Chronological Statement of Retirement Points), dated 24 February 2015, shows he was credited with a total of 15 years and 18 days of qualifying service towards a nonregular retirement as follows:

* 13 years and 18 days for the period 14 June 1974 to 1 July 1985 for his active duty service in the RA
* 2 years of qualifying service towards a nonregular retirement for the period 2 July 1985 to 1 July 1987 for his service in the USAR

16.  This AHRC Form 249-E shows he was credited with at least 15 membership points for the period 2 July 1987 through 28 June 1995.  He was not credited with any "good years" of qualifying service towards a nonregular retirement after 1 July 1987.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.




17.  Army Regulation 135-180 (ARNG and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, states that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have:  (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as a RC Soldier.  During the period October 1994 to December 2001, the requirement to service the last 8 years in a RC was amended to 6 years.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for nonregular retirement.  A qualifying year of service for nonregular retired pay is a full year during which a Reserve member is credited with a minimum of 50 retirement points.

2.  A member of the Selected Reserve of an RC who is medically disqualified for continued service in an RC may be considered as having met the service requirement and may be issued a Notification for Eligibility for Nonregular Retired Pay at Age 60, 15-year letter, if the member completed at least 15 years, but less than 20 years of qualifying service for nonregular retirement purposes.

3.  The evidence of record in this case confirms the applicant completed a total of 15 years and 18 days of qualifying service for nonregular retirement.  However, at the time of his service and discharge from the USAR, the law required the last 6 years of a member's service to be in a Reserve Component.  The applicant in this case completed 13 years and 18 days in an active status (Regular Army Component) and 2 years of service in a Reserve Component.  He does not meet the statutory or regulatory requirements for a 15-year letter.  Therefore, he is not entitled to 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 that 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)                                         AR20140014369





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ABCMR Record of Proceedings (cont)                                         AR20140014369



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