MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 June 2000
	DOCKET NUMBER:   AR2000037098

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		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, that he be authorized early Reserve retirement eligibility for disabled members of the Selected Reserve.  

APPLICANT STATES:  In effect, that he qualifies for retired pay at age 60 based on early retirement eligibility for disabled members of the Selected Reserve.  He claims he was not informed of his rights at the time he was discovered to be medically unfit for service.  He indicates that he did not find out he was eligible for these benefits until December 1998 and claims by law he is entitled to this retired pay and the associated benefits.  

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

On 13 May 1973, the applicant was commissioned a 2nd Lieutenant in the Army National Guard (ARNG) and served there until he transferred to the USAR on 
13 May 1975.  He served in the USAR until he was transferred from the Selected Reserve to the Retired Reserve, in the rank of major, effective 28 February 1995.

The applicant provided a Department of the Army Reserve Personnel (DARP) Form 249 (chronological statement of retirement points), dated 29 August 1994, which indicates that he had completed 16 years of qualifying service for retirement as of a service ending date of 12 May 1994.  

He also supplied a Standard Form (SF) 88 (report of medical examination), dated 22 September 1994.  The SF 88 contained a statement in block 74 (summary of defects and diagnosis), which stated that the applicant had adult onset of diabetes mellitus.  There was an accompanying comment that processing by a medical evaluation board (MEB)/physical evaluation board (PEB) was anticipated.  However, in block 77 of the SF 88, there was a determination made by competent medical authority that the applicant was qualified for retention.  This medical examination contains no entries indicating that the applicant was not medically qualified for retention.  

On 5 December 1994, the Chief, Office of Promotions, Reserve Components, Army Reserve Personnel Command (ARPERSCOM), St, Louis, Missouri notified the applicant that he had been considered but not selected for promotion.  This notification advised the applicant that since this was his second non-selection for promotion he was required to separate from the USAR.  He was also informed that his commander would advise him of separation procedures and of any options available to him by separate correspondence.  

On 22 February 1995, Orders Number C-02-505848, issued by ARPERSCOM, released the applicant from his Selected Reserve assignment at Fitzsimons Army Medical Activity, Aurora, Colorado and assigned him to the Retired Reserve, effective 28 February 1995.  The authority listed for the action was paragraph 
6-2, Army Regulation 140-10, and the reason cited for the action was 
non-selection for promotion.  The available record contains no information that would suggest that the applicant was ever returned to the Selected Reserve subsequent to this transfer to the Retired Reserve on this date.

On 21 August 1995, a notification of medical disqualification memorandum was published by the Command Surgeon of ARPERSCOM.  This document indicated that a clinical review of the applicant’s medical records had been completed and it was determined that he did not meet the standards for retention in the USAR by reason of diabetes mellitus.  It further stated that, under the provisions of chapter 3, paragraph 11d, Army Regulation 40-501, diabetes when proven to require hypoglycemic drugs in addition to restrictive diet for control is disqualifying.  

The applicant was provided an option form with the notification of medical disqualification memorandum, which gave him the alternatives of electing  discharge from the USAR, transfer to the Retired Reserve, or to submit a request for a waiver for retention.  On 27 August 1995, he completed his election form and choose the option to transfer to the Retired Reserve based on his medical disqualification.   

Title 10 of the United States Code, section 12731 provides temporary special retirement qualification authority.  It provides the Secretary concerned the legal authority to approved retirement of members with at least 15 years of service under certain circumstances.  It states, in pertinent part, that the Secretary may approved a 15 year retirement for a member who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability. 

A Chief, Army Reserve (CAR) Memorandum, dated 1 July 1996, provides specific program guidance pertaining to “The Early Reserve Retirement Eligibility of Disabled Members of the Selected Reserve.”  It states that members of the Selected Reserve who are subject to involuntary separation from the Selected Reserve solely because they are unfit due to medical disability, may elect early qualification for retired pay at age 60 provided they transfer to the Retired Reserve.  In this memorandum, the qualification dates of this program were identified as beginning on 5 October 1994 and ending on 30 September 1999.

This CAR memorandum also provides the criteria for meeting eligibility for early retirement under the provisions of this program.  It states, in pertinent part, that the member must be in the Selected Reserve and be determined to be unfit for continued service in the Selected Reserve because of physical disability.  It also identifies two conditions that must be met to establish a medical disqualification under the provisions of this program.  The first condition is completion of a SF 
88 with a not qualified determination noted.  The second condition is that a clinical review on the SF 88 with a not qualified determination be made in less than 60 days.  

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.  After careful review of the evidence or record and the independent evidence submitted by the applicant, the Board concluded that the applicant did not meet the eligibility criteria established to qualify for “The Early Reserve Retirement Eligibility of Disabled Members of the Selected Reserve” program. 

2.  The criteria established to qualify for early retirement under the provisions of the “The Early Reserve Retirement Eligibility of Disabled Members of the Selected Reserve” is very specific.  It clearly specifies that the provisions of the program only apply to members of the Selected Reserve who are determined to be unfit for retention.  This unqualified determination must be documented in an SF 88 and a clinical review of the SF 88 must be made by the appropriate medical authority within 60 days.  Neither of these conditions of the program were met in the applicant’s case.  

3.  The Board was inclined to entertain equity relief, even though no disqualifying determination was made on the SF 88, because the applicant’s medical condition was identified in the form.  However, this inclination was suppressed by the fact that the clinical review of the SF 88, which under the provisions of the program must be conducted within 60 days, was not accomplished until a year after the SF 88 containing the diagnosis had been prepared.  Therefore, the applicant remained qualified for retention for an additional year after he was diagnosed.

4.  Additionally, the Board noted that the applicant was not a member of the Selected Reserve when the clinical review was completed.  In fact, the record shows that he had already been reassigned to the Retired Reserve 6 months earlier.  His transfer to the Retired Reserve was the result of his being a two time non-select for promotion.  Therefore, the Board finds that the applicant failed to meet the basic criteria necessary to qualify for “The Early Reserve Retirement Eligibility of Disabled Members of the Selected Reserve.”  He was not a member of the Selected Reserve when he was determined to be medically disqualified and his medical disability was not the sole reason for his involuntary separation from the Selected Reserve.  

5.  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.

6.  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

__mvt___  ___owt__  __kan ___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037098	
SUFFIX		
RECON		
DATE BOARDED	2000/06/15	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 177	108.0000	
2.		
3.		
4.		
5.		
6.