PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            9 June 1999      
	DOCKET NUMBER:   AR1999022405

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. James P. Steuve		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests physical disability retirement.   

3.  The applicant cites his physical failure [results of physical examination] in August 1992, a heart problem, hypertension, and suspected ulcers.  He was temporarily qualified for duty pending a cardiovascular screening, at which time he was extended.

4.  The applicant was a member of the Army Reserve, who had initially enlisted in the Reserve on 24 April 1975.

5.  In a 16 April 1993 note, the applicant’s personal physician stated that the applicant was being treated for hypertension, and that his blood pressure was sufficiently under control for him to continue his regular duties in the Army Reserve. 

6.  The second page of an undated results of a physical examination indicates that the applicant was qualified for retention pending a cardiology consultation.  He needed phase II, cardiovascular screening/health risk assessment.  His physical profile serial was 4 1 1 1 1 1.  

7.  On 14 June 1993 the applicant was notified that he was found medically unfit for retention in the Army Reserve, and that he had three options available to him – request consideration for a waiver, or in the event his request was disapproved, elect transfer to the Retired Reserve or elect discharge from the Reserve.  He requested consideration for a waiver, and elected transfer to the Retired Reserve if his request for waiver was disapproved. 

8.  A 24 June 1993 note indicates that an Army medical doctor states that the applicant was not qualified for reenlistment, and that should he want to appeal, he would be extended.  

9.  On 15 July 1993 the applicant’s commanding officer requested that the Army hospital at Fort Campbell, Kentucky, schedule a cardiovascular screening/health risk assessment for the applicant, if necessary.  He stated that the applicant would not be allowed to reenlist until the phase II screening had been completed, and the applicant was found fit for retention. 

10.  A copy of the applicant’s chronological statement of retirement points shows that the applicant had 17 years of qualifying service for retired pay as of the ending date of his retirement year (RYE) of 23 April 1994.

11.  On 22 March 1995 the applicant extended his enlistment in the Army Reserve for three months, making his new separation date (ETS) 24 June 1995.

12.  On 21 May 1995 the applicant signed a statement, in which he requested to separate [from the Army Reserve].  He stated that he wished to waive all rights on the medical board that was now pending, and that this [that date, drill date] would be his last drill at the 330th Combat Support Hospital. 

13.  The applicant was discharged from the Army Reserve on 13 July 1995.  His personnel qualification record shows that he was retained beyond his normal discharge date for the convenience of the government.

14.  In a 20 November 1995 letter, the applicant outlined the circumstances leading up to his discharge, stating that after the second time he underwent cardiovascular screening/health risk assessment, or a “treadmill” test, the results showed that he was fit for military duties with medical monitoring until he had attained 18 years of service for retirement for medical reasons.  He never received medical monitoring, but attended two annual training camps in which he endured a lot of physical and mental stress.  His ETS date was approaching, so he extended for three months.  In the month of May, an NCO gave him a document to sign, and a medical board waiver, which he had not seen before, but he signed it anyway with the understanding that he would be retired for medical reasons with 18 years of service, only to discover that he had been illegally separated. 

15.  The National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a©.  The modification allows Reserve component soldiers who are involuntarily separated between 5 October 1994 and 30 September 1999 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve component retirement.

CONCLUSIONS:

1.  The applicant was found physically unfit for further military service; however, it appears that he was discharged from the Army Reserve not because of medical disqualification, but because of the expiration of enlistment agreement, i.e., his ETS had come and gone.  He had remained in an active status in the Reserve since June 1993 after having been found medically unfit for retention, indicating that he had obtained a waiver for his medical condition.  He had extended his enlistment in March of 1995, and although he was separated because of the expiration of his enlistment agreement, the underlying reason for his discharge was because of medical unfitness.  At the time of his discharge he had at least 17 years of qualifying service for retired pay at age 60.

2.  The National Defense Authorization Act provides retirement eligibility for individuals in the applicant’s situation.  He could have requested transfer to the Retired Reserve and be eligible for retired pay at age 60.  And, in all fairness to the applicant, he should be transferred to the Retired Reserve, notwithstanding the 21 May 1995 statement that he signed.

3.  Consequently, the order discharging him from the Army Reserve on             13 July 1995 should be revoked and that order determined to be null and void and of no force or effect.

4.  Instead, the applicant’s records should be corrected to show that he was involuntarily separated from the Army Reserve because of medical unfitness and that he transferred to the Retired Reserve effective 15 July 1995; and that he is eligible for retirement pay at age 60 based on his qualifying years of Reserve service, in accordance with the provisions of law. 

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

     a.  revoking the order discharging the applicant from the Army Reserve on    13 July 1995.  That order should be determined to be null and void and of no force or effect; and, 

     b.  showing that the applicant was involuntarily separated from the Army Reserve because of medical unfitness and that he transferred to the Retired Reserve on 13 July 1995, and that he is eligible for retired pay at age 60 based on his qualifying years of Reserve service. 

BOARD VOTE:  

____eb__  __rjw___  __jps___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999022405	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990609	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	( GRANT )	
REVIEW AUTHORITY		
ISSUES         1.108.00		
2.		
3.		
4.		
5.		
6.