IN THE CASE OF:  	  

		BOARD DATE:  1 September 2015	  

		DOCKET NUMBER:  AR20140021374 


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 reinstatement in the U.S. Army Reserve (USAR) and assignment to a troop program unit (TPU).

2.  The applicant states, in effect:

	a.  Through no fault of his own, he was not able to perform duty/earn retirement points due to a medical condition that was known to the U.S. Army Human Resources Command (HRC).  He was issued a temporary physical profile for a knee injury pending review for a permanent physical profile.

	b.  From September 2012 to December 2014, he was assigned to the USAR Individual Ready Reserve (IRR).  He was enrolled in the U.S. Army Sergeants Major Academy (USASMA) non-resident Sergeants Major Course (SMC).  He completed phase I of the course.  He has not been able to complete phase II, the resident portion, because he was issued a temporary physical profile.  He could not be scheduled to attend the course until a permanent physical profile was issued.  A permanent physical profile was issued on 4 August 2014.

	c.  While under an authorized deferment from USASMA due to a medical condition, he was erroneously disenrolled from the SMC in April 2014.  Although this determination was eventually reversed in October 2014, it caused an additional unexpected delay and prevented his attendance in phase II in June 2014.

	d.  On 1 September 2012, he transferred to the IRR from a TPU due to family issues (his wife was diagnosed with cancer).  He intended to return to a TPU when circumstances allowed.

	e.  On 6 September 2012, he severely injured his right knee in an accident.  He was issued temporary physical profiles in November 2012, February 2013, and April 2014 while he was being evaluated for surgery and rehabilitation.  He was not authorized to perform any duty due to having a temporary physical profile.

	f.  In November 2013, he requested issuance of a permanent physical profile because he reinjured his knee while preparing to take the Army Physical Fitness Test (APFT) for the SMC phase II.  He was advised that this process would only take a few months due to the well-documented injury and the pending reconstructive surgery.  He expected a permanent physical profile would be issued before the June 2014 class starting date which he hoped to attend.

	g.  On 6 January 2014, reconstructive surgery was performed on his right knee.

	h.  On 4 August 2014, a permanent physical profile was issued based on this injury and his physical condition.

	i.  On 12 November 2014, he requested a waiver in response to his pending discharge for nonparticipation in the USAR and in lieu of transfer to the Retired Reserve.

	j.  He believes the information specific to his medical condition was reviewed and unfairly weighed in the determination to transfer him to the Retired Reserve. 
The information pertaining to his erroneous dismissal from the SMC may have been considered in the decision.  He does not believe the fact that a permanent physical profile was issued was considered in this review.

	k.  He volunteered to transfer to the IRR to better support his wife while she underwent evaluation and treatment for cancer.  He fully intended to return to a TPU as soon as possible.  He has been trying to return to a TPU for more than a year, but he could not do so while having a temporary physical profile.  Since August 2014 when the permanent physical profile was issued, he has been actively pursuing transfer to a TPU through an Army Retention Office.  He has requested and discussed attendance in the SMC phase II since June 2012 when he originally requested to attend the August 2012 class starting date.

	l.  A permanent physical profile was issued and he was determined to be eligible for continued service.  He has been released to return to physical activity by his surgeon.  Until today, he was enrolled to attend the SMC phase II in January 2015.  He has been disenrolled because he was transferred to the Retired Reserve.  He desires to return to a TPU and attend the SMC phase II.

	m.  He has more than 3 1/2 years of time in grade as a sergeant major (SGM).  His date of rank is 1 May 2011.  To be transferred to the Retired Reserve at this time would prevent him from attending mandatory training and completing the SMC.  Failure to complete the course may result in his reduction in grade.

3.  The applicant provides 10 enclosures as listed on page 3 of his statement in support of his application, dated 3 December 2014.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 14 March 1962.  Having prior service in the Regular Army and USAR, he enlisted in the USAR on 10 July 2000.

2.  He was issued a notification of eligibility for retired pay at age 60 (20-year letter) on 13 August 2009.

3.  He was promoted to SGM effective 1 May 2011.

4.  He was reassigned to the IRR effective 1 September 2012 per his request.

5.  He indicated he injured his right knee on 6 September 2012 and he was issued three 90-day temporary physical profiles between November 2012 and April 2014.

6.  He provided documentation showing he was granted a medical deferment from the SMC phase II course in December 2012 and September 2013.

7.  On 22 October 2013, he requested a one-time waiver in response to his pending discharge for nonparticipation in the USAR and in lieu of transfer to the Retired Reserve.

8.  On 6 January 2014, he underwent surgery on his right knee.

9.  His DA Form 1059 (Service School Academic Evaluation Report), dated 18 February 2014, shows he was dismissed from the SMC for failing to attend phase II.  This form shows the course duration as 1 August 2010 through 18 February 2014 (3 years, 6 months, and 18 days).

10.  A DA Form 3349 (Physical Profile), dated 4 August 2014, shows he was issued a permanent physical profile for knee pain and decreased vision.

11.  He provided a memorandum from the USASMA, dated 2 October 2014, which states he was erroneously dismissed from the SMC and he would be allowed to attend the resident portion as soon as he was able to take the APFT required for entry.

12.  On 12 November 2014, he again requested a one-time waiver in response to his pending discharge for nonparticipation in the USAR and in lieu of transfer to the Retired Reserve.

13.  On 20 November 2014, he was released from the USAR IRR and assigned to the Retired Reserve due to nonparticipation.

14.  His HRC Chronological Statement of Retirement Points, dated 20 January 2015, shows he was credited with a total of 23 years of qualifying service for retired pay.  This statement further shows he was credited with:

	a.  84 retirement points (46 inactive duty, 15 membership, and 23 active duty) for retirement year ending (RYE) 9 July 2012;

	b.  22 retirement points (7 inactive duty and 15 membership) for RYE 9 July 2013; and

	c.  15 membership retirement points for RYE 9 July 2014.

15.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Operations Management Division, HRC, dated 2 February 2015, which states:

	a.  HRC did not find a regulatory reason to return the applicant to a TPU.

	b.  The applicant was a nonparticipant in a TPU for 2 consecutive years, 2012 and 2013.

	c.  He was already granted a one-time waiver for nonparticipation.

16.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 23 February 2015, he responded and stated:

	a.  He was not able to perform duty during the last quarter of 2012, all of 2013, and the first three quarters of 2014 due to no fault of his own.

	b.  In 2013, he notified HRC that his RYE date had been previously changed from February to July without his knowledge.  He did not know when this change occurred, but it might have been in conjunction with a retirement point recomputation or when he was released from active duty in March 2010.  Due to that change, the only duty he performed which counted for RYE 2013 was the few days from July to August 2012.

	c.  On 6 September 2012, he was injured in a bicycle accident which required more than 2 years of rehabilitation before and after knee reconstruction surgery.  Due to this injury, rehabilitation, and surgery, he was issued a temporary physical profile.  While having a temporary physical profile, he was not authorized to perform duty.  Due to this Army regulatory mandated requirement, he was not able to meet his service obligation through no fault of his own.

17.  The nonresident SMC is an 18 to 24-month program that uses both distributive learning and resident educational technologies that parallel the resident course curriculum.  It is available only to Soldiers who are selected by the Command Sergeant Major/Sergeant Major/SMC Board.  Phase I, the correspondence phase, consists of 6 modules with 6 to 12 lessons each.  Phase II is conducted in residence at the USASMA.  As an end-of-course graduation requirement, Soldiers must take and pass a standard approved alternate APFT.  Reserve Component Soldiers enrolled in the SMC will be tested by the end of the first week of training to allow sufficient time to retest to meet the end-of-course graduation requirement.

18.  Army Regulation 40-501 (Standards of Medical Fitness) provides that Soldiers receiving medical or surgical care or recovering from illness, injury, or surgery, will be managed with temporary physical profiles until they reach the point in their evaluation, recovery, or rehabilitation where the profiling officer determines the Medical Retention Determination Point has been achieved but no longer than 12 months.  A temporary physical profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity.

19.  Army Regulation 135-200 (Army National Guard and Army Reserve – Active Duty for Missions, Projects, and Training for Reserve Component Soldiers) prescribes policies and procedures for ordering Army National Guard of the United States and USAR Soldiers to annual training, active duty for training, initial active duty for training, and active duty for special work.  There is no regulatory requirement prohibiting performance of these categories of active duty relating to temporary physical profiles.

20.  Army Regulation 140-1 (Army Reserve – Mission, Organization, and Training) provides policy guidance on the mission, organization, and training of the USAR.  There is no regulatory requirement prohibiting performance of inactive duty training relating to temporary physical profiles.

21.  Army Regulation 135-180 (Army National Guard and USAR – Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 states a Reserve Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  Only Soldiers assigned to an active status in a Reserve Component or individuals in active Federal service are authorized to earn retirement point credit.

22.  Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), section IV (Release from IRR Assignment), identifies the conditions under which a Soldier is released from assignment to an IRR control group.  Such a release is a result of a Soldier's voluntary or involuntary reassignment to the Selected, Standby, or Retired Reserve, or separation from the USAR.  An IRR Soldier who is otherwise qualified may voluntarily request reassignment to the Retired Reserve.

23.  Army Regulation 140-10, paragraph 7-3.1 (Nonparticipation), states an 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 enlisted Soldier who fails to attain 50 points by the anniversary of his or her RYE date will be removed from active status.

DISCUSSION AND CONCLUSIONS:

1.  The evidence indicates the applicant injured his right knee in September 2012, he was issued temporary physical profiles, he underwent knee surgery in January 2014, and he was issued a permanent physical profile for knee pain and decreased vision in August 2014.

2.  He contends he was not authorized to perform duty due to his temporary physical profiles and he was not able to meet the Army regulatory mandated requirements through no fault of his own.

3.  Contrary to his contention, there is no Army regulatory guidance that prohibits Soldiers with temporary physical profiles from performance of routine inactive duty training, annual training, active duty for training, initial active duty for training, and active duty for special work or earning retirement points.

4.  The evidence of record does not support his contention that he was not authorized to perform duty (earn retirement points) from September 2012 to December 2014 due to his medical condition.  The governing regulation states Soldiers assigned to an active status in a Reserve Component are authorized to earn retirement points.  He was assigned to the IRR during this period.

5.  Since he failed to attain 50 retirement points for RYEs 9 July 2013 and 9 July 2014, he was properly reassigned to the Retired Reserve for nonparticipation.  Therefore, there is an insufficient evidentiary basis on which to grant 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)                                         AR20140021374



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ABCMR Record of Proceedings (cont)                                         AR20140021374



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