MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           12 December 2000                  
	DOCKET NUMBER:   AR2000040347

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn 		Chairperson	
	Ms. Lana E. McGlynn 		Member	
	Mr. Harry B. Oberg 		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:  That her records be corrected to reflect an approved early retirement rather than disability separation.

APPLICANT STATES:  That at the time of her disability separation she was given no explanation of the 15 year early retirement program (TERA), nor afforded the opportunity to apply for early retirement. 

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

The applicant entered the Army on 5 August 1981 and had continuous active service until her discharge in 1997.  She attained the rank of Staff Sergeant E-6, and received numerous awards, including the Army Commendation Medal, three awards of the Army Achievement Medal, and five awards of the Army Good Conduct Medal.  She completed the basic NCO course (BNCOC), and was assigned to various locations throughout the world, to include Korea and Alaska.

A 16 July 1996 medical evaluation shows that the applicant had numerous physical problems, to include chronic upper and lower back pain; chronic musculoskeletal neck pain; chronic bilateral knee pain; primary asymptomatic hypothyroidism with a history of an associated benign thyroid goiter; multiple muscular and soft tissue contusions and myalgias resulting from multiple minor motor vehicle accidents from 1998 to 1994; nephrolithiasis; obesity; and carpal tunnel syndrome, bilateral, status post corrective surgery.  The Medical Evaluation Board (MEB) indicated that the applicant was in very poor health as a result of her multiple medical problems and that she was able to function at home with minimal exertion and discomfort for short periods of time.  She was unable to perform any meaningful duty in her present duty assignment.  She was unable to wear protective equipment without significant symptoms of pain.  She was completely nondeployable due to her complex medical condition which required frequent medical care.  The evaluation indicated that despite the apparent lack of significant objective evidence of serious disease to explain her multitude of symptoms, she was subjectively unfit for military duty in any capacity.  The examining doctor recommended that the applicant be referred to a physical evaluation board (PEB).  A 20 August 1996 MEB recommended that the applicant be referred to a PEB.

On 9 October 1996 a PEB determined that the applicant was physically unfit because of chronic upper and lower back pain, chronic musculoskeletal neck pain, and chronic bilateral knee pain.  The remaining 11 diagnoses indicated by the MEB were determined to be not unfitting and not rated.  The PEB stated that the applicant’s chronic multiple complaints of pain, amount of medical appointments, and profile precluded continued active duty service.  It stated that the medical board of 14 diagnoses with over 29 medical problems reported by history supported the conclusion that the applicant had probably been unfit for several years.  It indicated, however, that the applicant’s commander reported that the applicant was capable of performing duties in her rank, but not her MOS (military occupational specialty).  There was a paucity of objective evidence to explain the applicant’s multiple orthopedic problems and other conditions, and many of the medical board diagnoses did not render the soldier non-retainable and should not have been included in the medical board.  The PEB recommended that the applicant receive a rating of 20 percent and that she be separated with severance pay.

The applicant was discharged on 24 March 1997.  She had 15 years, 7 months, and 20 days of service.  She received severance pay in the amount of $46720.80.   

On 12 July 1996 the Army announced the FY97 Regular Army early retirement program.  That program was established as a temporary management tool and was never intended to be an entitlement.  It was offered only to Army members who met strict eligibility requirements.  The eligibility requirements for FY97 were those soldiers with a bar to reenlistment or who had signed a declination of continued service statement, and who would complete more than 18 years of active service on the requested retirement date; and those promotable sergeants (Sergeant E-5).  Those who did not meet the eligibility requirements were ineligible to apply for early retirement.  Those soldiers not medically cleared for separation by the requested early retirement date were ineligible to apply.  An approved early retirement for soldiers who were subsequently identified for MEB/PEB processing would be revoked.  

Nevertheless, DOD Instructions 1332.38 states that soldiers who are being separated for physical disability who have 15 but less than 20 years of service and whose unfitting conditions are not due to the soldier’s intentional misconduct or willful neglect or incurred during a period of unauthorized absence shall be afforded the opportunity to elect separation for physical disability or to apply for, and if approved, non disability retirement under the temporary early retirement authority (TERA) under 10 U.S.C. 3911. 

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’s contention that she was not afforded the opportunity to apply for early retirement under the TERA cannot be determined.  Nevertheless, had she been afforded the opportunity and had she applied for early retirement under the FY 97 early retirement program in lieu of physical disability retirement; or even had she been physically fit, her request would not have been approved.  She did not meet the eligibility requirements.  She was therefore ineligible to apply. 

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

___fne___  ___lem__  ___hbo__  DENY APPLICATION

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

INDEX

CASE ID	AR2000040307	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001212	
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.	136.00	
3.		
4.		
5.		
6.