MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 February 2000                  
	DOCKET NUMBER:   AR1999026476

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

	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Ms. Carol Jo Suiter		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, physical disability retirement.  

APPLICANT STATES:  That when he reached retirement age, he requested a copy of his 20 year letter, only to be informed that he was 2 years short of having 20 qualifying years of service for retirement.  When he left the Army Reserve, he also had to retire from the Mare Island Naval Shipyard because of disability.  At that time, there were no provisions for early retirement due to disabilities.  Now, however, the 1995 FY authorization act has authorized 15 year retirement because of medical disabilities.  Although the window for this action was from 1995 to 1999, the act did not specify that it eliminated grandfathering.   

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant’s DA Form 2-1 (Personnel Qualification Record) shows that he first entered the military service in 1954, served in various military components, to include the Air Force Reserve, the Army, both on active duty and in the Army Reserve, and the Army National Guard.  A discharge certificate which he submits with his application shows that he was discharged in March 1980 in the rank of Sergeant First Class.

In a 2 July 1976 medical report, a doctor opined that the applicant was suffering from cervical nerve root compression and impingement involving the brachial plexus of nerves with primary involvement of the median and ulnar nerve of the right side, resulting in motor and sensory changes of the right arm and hand.  The opinion was that the applicant should not be involved in any activity or work requiring lifting of any kind and that he should be considered permanently disabled for the work and job title for which he was employed.

In a 15 July 1976 United States Civil Service Commission report of medical examination for disability retirement, the examining physician diagnosed the applicant’s condition as cervical arthritis and traumatic arthritis of the right knee.  He stated that he did not feel that the applicant was completely disabled, that his condition was treatable by surgery; however, the applicant refused surgery so he probably would not have any permanent relief from his present symptomatology. The doctor stated that the applicant was not disabled for his position as a warehouseman.

The applicant submitted a 16 March 1977 letter from a physician of the San Francisco Neurosurgical Medical Group to the U.S. Civil Service Commission, in which that doctor outlined the history of the applicant’s medical condition, and concluded that the applicant had a mild ulnar nerve lesion at his right elbow to account for the sensory changes in the hand and the weakness of the ulnar muscles. 

The applicant submitted a copy of a retirement certificate from the Mare Island Naval Shipyard, dated 13 September 1977.

In a 29 July 1988 letter to the Civil Service Retirement System a physician diagnosed the applicant’s condition as chronic cervico-thoracic sprain with brachial paresthesia; chronic lumbo-scral sprain/strain syndrome with myofasoitis and hypermyotonis; and stated that the applicant was not capable of pursuing the duties of a warehouseman. 

In a 7 October 1988 letter to the Office of Personnel Management, a physician stated that the applicant appeared to have some early and mild degenerative disc changes with mild degenerative disc disease, and that with prolonged sitting or very strenuous type work, it could produce some chronic pain type symptoms, but the applicant should not be particularly disabled from less strenuous type work, particularly if he was not required to do prolonged sitting.

In a 7 November 1991 letter to the Office of Personnel Management, a doctor stated that the applicant did have chronic low back pain and that prolonged sitting or very strenuous work could produce chronic pain symptoms.  He should be able to do less strenuous type work such as lifting less than 20 pounds, etc. 

A 20 August 1998 copy of the applicant’s chronological record of military service shows that he had 17 years, 9 months, and 8 days of qualifying service for retired pay at age 60, at the time of his discharge in March 1980.

Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which soldiers of the Reserve component, whether or not on extended active duty, apply for continuance in the active Reserve.

Paragraph 8-2 states that soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

Paragraph 8-6 states that when a commander believes that a soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the soldier for medical evaluation.  Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the soldier’s unit commander for disposition under applicable regulations. 

Paragraph 8-9 states in pertinent part that a soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc.

Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers.  Paragraph    2-1 of that regulation states, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his qualifying service as a Reserve component soldier.

The National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a© (now codified under section 12731a).  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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was discharged from the Army Reserve in March 1980.  There is no evidence, nor has the applicant submitted any, that his discharge was the result of physical disability.  It is presumed from the applicant’s request and his statements that he was discharged not as a result of medical unfitness.  Nonetheless, there are no provisions of law that allow the application of the provisions of the National Defense Authorization Act for Fiscal Year 1995 to a soldier who was medically unfit prior to 5 October 1994. 

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___cjs___  ___dsj___  ___rvo__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025476	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000209	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.