PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            13 February 2001                  
	DOCKET NUMBER:   AR2000044885

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	June Hajjar		Chairperson	
	Harry b. Oberg		Member	
	Shirley Powell		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, in effect, that his military records be corrected to show that he was retired under the provisions of Public Law 103-337, section 517 (15-year retirement law).  He states that he had been determined to be unfit for continued military service following his diagnosis of multiple myeloma and underwent a Medical Evaluation Board.  He notes that he applied for the early retirement program but his paperwork was lost and he was ultimately discharged upon the expiration of his enlistment contract in May 1997.  In support of his request he submits medical documentation, a statement from the 81st RSC (Region Support Command) Surgeon confirming that he was unfit at the time of his separation and a statement suggesting he contact this Board to pursue his request for early retirement.

3.  Information available to the Board indicates the applicant had 16 qualifying years for Reserve retirement on 11 February 1994 and was a member of the 17th Field Artillery Battalion in Rocky Mount, North Carolina.  On 3 December 1995 he was issued a permanent physical profile (4-1-1-1-1-1) for multiple myeloma which precluded performance of duties “remote from medical center.”  His unit commander supported the applicant’s request for an early retirement and transfer to the retired reserve in February 1996.  However, on 30 May 1997 the applicant was honorably discharged from the United States Army Reserve.

4.  A statement to the Commander, 81st Regional Support Command, dated 
8 September 1999 notes that the applicant became ill during annual training in 1995 and was subsequently diagnosed as having multiple myeloma and that “while his retirement packet was undergoing the review process, his unit was deactivated and he was transferred to the 982nd Signal Company” in April 1996.  The statement notes that the applicant was unable to drill with his new unit because of his illness and that the applicant’s former unit administrator confirmed that the applicant’s “retirement packet was misplaced during this transition period, and he was allowed to ETS without a medical discharge.”  The applicant was advised to submit “all medical documents relating to his conditions” and that a review by the 81st RSC Surgeon would “determine if he [the applicant] was medically unfit during the time that he was discharged from the Army Reserves.”

5.  On 30 January 2000 the Assistant Surgeon, 81st Regional Support Command, noted that a “review of documents on [the applicant] reveals that he was unfit for military duty (AR 40-501, Chap 3) at the time of his discharge.”

6.  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.  
CONCLUSIONS:

1.  Although the applicant was honorably discharged from the USAR on 30 May 1997 the evidence confirms that he was in fact medically unfit for continued service and should have been permitted to participate in the early retirement program and transfer to the Retired Reserve with entitlement to retired pay at age 60 based on attaining the minimum of 15 years of qualifying service toward Reserve component retirement.

2.  There is sufficient evidence to conclude that the applicant had been determined to be unfit for continued service and that he had initiated his application for early retirement prior to deactivation of the 17th Field Artillery Battalion.  Accordingly, to discharge him on 30 May 1997 and deprive him of Reserve Retirement pay at age 60 and other benefits is unjust.

3.  In view of the foregoing, and in the interest of justice, 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:

a.  by voiding the action discharging the individual concerned form the USAR on 30 May 1997; and

b.  by showing that on 30 May 1997 he was honorably separated from the USAR and transferred to the Retired Reserve with entitlement to Reserve retired pay at age 60 under the provisions of the National Defense Authorization Act for Fiscal Year 1995 (Public law 103-337).

BOARD VOTE:  

__jh____  ___sp___  __hbo__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000044885	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010213	
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.