PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            6 February 2001                  
	DOCKET NUMBER:   AR2000041670

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		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 that his discharge from the Army Reserve be revoked and that he be reinstated in the Army Reserve, with the restoration of all rights, privileges, and property.

3.  The applicant states that he was discharged without notice, or an option to request a medical discharge.  When notified by the Army Reserve Personnel Command (AR PERSCOM) surgeon’s office that additional documentation was required to complete his physical, he returned to the Vicksburg Medical Center.  The doctor informed him that his clinic could not do refractions on eyeglasses and provided a letter to that effect, which he forwarded to the surgeon’s office.  On 20 February 1999 he received discharge orders, and in September 1999 he did not receive his VSI (Voluntary Separation Incentive) payment.  He was informed that he had to be reinstated in the Inactive Ready Reserve (IRR) in order to receive VSI payments.  He states his discharge terminated his annual VSI payments of $9,398.44.  He states that the command surgeon’s office informed him that he was discharged because he did not respond to the correspondence that he had received and because he indicated on his report of medical history that he had past pain or pressure in chest and recurrent back pain.  He states that an EKG and a flex test was performed and the findings were normal, and that the doctor noted on his physical that he was qualified for current duty station.    

4.  The applicant’s military records show that the applicant was discharged from the Army in the rank of Captain on 30 September 1992 and transferred to the Army Reserve Control Group (IRR) at St. Louis.  He had over 10 years of military service.  His DD Form 214 shows that he would receive a VSI payment of $9,398.44 for 22 years.

5.  On 19 December 1997 the applicant underwent a medical examination at the Vicksburg Medical Center.  The report of that examination indicates that he was in general good health and qualified for his current duty station.  In the report of medical history he furnished for that examination, the applicant listed certain medical problems (past or present), to include pain or pressure in chest, recent gain or loss of weight, and recurrent back pain.

6.  A 10 April 1998 memorandum from the AR PERSCOM command surgeon to the applicant indicates that the applicant had still not sent in the refraction portion of his physical, and that failure to maintain a current physical could result in his elimination from the Army Reserve under the provisions of Army            Regulation 135-175.  He was asked to provide the requested information no later than 10 May 1998.

7.  The applicant was discharged from the Army Reserve on 16 February 1999.

8.  Information obtained from the VSI official at St. Louis shows that the applicant did take a routine physical examination at Vicksburg in December of 1997.  A record concerning the applicant’s case also shows that the system indicated that he was discharged for medical reasons.  That record also indicates that an NCO in the surgeon’s office advised the applicant on two occasions that more information concerning his physical was required, and that the applicant failed to respond, so the case was sent to the team for discharge.  The record shows that they were unable to locate backup.  Telephone calls between the applicant in 1999 and 2000 show that the applicant was informed that if he could not resolve his physical situation with the surgeon's office his discharge order would not be revoked, but that he could apply to this Board for relief.

9.  Information from the AR PERSCOM command surgeon’s office on                30 January 2001 revealed that the applicant did not respond to the request for information, and consequently, his file was forwarded to the appropriate Regional Support Team for possible separation action.  Information obtained on                31 January 2001 revealed that the applicant was involuntarily discharged because he was medically disqualified.

10.  Army Regulation 600-8-24, paragraph 2-5 provides for the voluntary release from active duty of Reserve commissioned officers.  A soldier approved for separation under the VSI program is paid an amount equal to 2.5 percent of his monthly basic pay on the date transferred to the Ready Reserve, multiplied by twelve and multiplied again by his years of service.  A soldier will be paid in annual installments commencing on his departure date from active duty, and on each anniversary date thereafter for twice the number of years of active duty, provided the soldier continues to serve in the Ready Reserve.  VSI annual payments will be discontinued if the member is separated from the Ready Reserve, except under certain conditions, i.e., the soldier’s death.  

11.  Army Regulation 135-175 provides for the separation of officers of the Army Reserve.  Paragraph 1-13 states in pertinent part, that section 1163(a) of        Title 10, USC, precludes the involuntary separation of officers with 3 or more years of commissioned service except on the approved recommendations of a board of officers convened by competent authority or as otherwise provided by law.  Chapter 2 of that regulation prescribes the criteria and procedures governing the involuntary separation of Reserve officers of the Army when their retention is not in the best interest of the service, and states in pertinent part that the separation of an officer under the provision of this chapter will be accomplished only on the approved recommendations of a board of officers (show cause board) convened by competent authority.  Paragraph 2-12 authorizes involuntary separation because of intentional neglect or failure to comply with applicable directives to include having the medical examination required by AR 140-120, and replying to official correspondence or completing administrative forms.     
12.  Paragraph 4-4 of Army Regulation 135-175 provides for the removal from an active status of a member of the Army Reserve, with or without his consent, when found to be medically unfit to perform active duty, except when the officer has been approved for continuance in an active status or has incurred a disability in the line of duty and is eligible for processing under the provisions of pertinent medical regulations.

CONCLUSIONS:

1.  It is inconceivable that the applicant would fail to do what he had to do, knowing that such failure would cost him over $9,000 a year for the next 15 or   16 years.  Nevertheless, the evidence indicates that he either failed to respond to a request for medical information, or that if he did, the command surgeon’s office did not receive his response.  

2.  Notwithstanding the information in the computer system at St. Louis, the preponderance of evidence suggests that the reason for his discharge was his perceived failure to provide the necessary medical information requested by the command surgeon’s office, and not because he was medically disqualified.  Consequently, he should have been afforded a show cause board.  This was not done.  His separation from the Army Reserve was unfair and unjust. 

3.  Therefore, the order discharging him from the Army Reserve on                     16 February 1999 should be revoked.  That order is null and void and of no force or effect.  His record should be corrected to show continuous service in the Army Reserve Control Group (Reinforcement) from 30 September 1992, the date of his discharge from the Army.  The applicant’s VSI payments should continue and he should receive those VSI payments that were stopped because of his erroneous discharge.

4.  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 him from the Army Reserve on                16 February 1999.  That order is null and void and of no force or effect; 

     b.  Showing that the applicant served in the Army Reserve Control Group (Reinforcement) continuously since his discharge from the Army on                   30 September 1992; and
     c.  Reinstating the applicant’s VSI payments and reimbursing the applicant any VSI payments that were stopped because of his erroneous discharge          in 1999.

BOARD VOTE:  

___tl___  ___rvo___  ___wtm__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000041670	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010206	
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. 177	110.00	
2.	128.00	
3.		
4.		
5.		
6.