MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           28 November 2000                   
	DOCKET NUMBER:   AR2000046336

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Wilfred A. Hale, Jr.		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 entitled to a non-regular retirement and/or a lump sum or monthly payment of either the Voluntary Separation Incentive (VSI) or Special Separation Benefit (SSB) as was offered in 1994/1995.

APPLICANT STATES:  That he was unjustly disqualified from re-entering the    U. S. Army Reserve (USAR) in 1994 due to a history of a positive skin test for tuberculosis (TB).  He had an impeccable record while serving his country for 17 plus years.

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

He was inducted into the Army on 9 August 1966, was released from active duty on 8 August 1968 and transferred to the USAR.  He was honorably discharged from the USAR on 8 August 1972 upon completing his statutory military obligation.  He enlisted in the Regular Army on 16 February 1977.  He was honorably discharged on 25 April 1988, the narrative reason for separation being reduction in authorized strength – fiscal year 1988 early transition program.  He had completed 13 years, 2 months and 10 days of creditable active service plus an additional 4 years, 2 months and 27 days of inactive service.

A tuberculin skin test reactor performed for his separation physical indicated the applicant had a positive reaction but no evidence of residual disease.  His risk factor for developing the active disease was assessed as not high. Chemoprophylaxis was not recommended due to his age and he was cleared for separation.

The applicant attempted to enlist in the USAR in 1994.  He was notified that he was medically disqualified due to a past history of a positive skin test for TB but without a course of medication.  He was informed the condition was considered disqualifying under current medical standards for entrance into military service.  The standards were designed to obtain people who could complete all aspects of military training and could perform duty worldwide without limitations and without excessive time lost due to medical problems.

A 12 October 1994 letter from a civilian doctor noted that the applicant had several chest x-rays which had remained stable without evidence of active disease and no signs or symptoms of any systemic illness suggesting TB.  

Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  In pertinent part, it states that a cause for rejection for enlistment is an individual with a past history of active TB if they have not received a complete course of standard chemotherapy for TB.  Also a cause for rejection for enlistment is an individual with a tuberculin reaction 10mm or greater and without evidence of residual disease in pulmonary or non-pulmonary sites if they have not or would not be treated with chemoprophylaxis.

Title 10, U. S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least 60 years of age; has performed at least 20 years of qualifying service (a qualifying year being a retirement year in which 50 or more retirement points are earned); and, having completed the service requirement during the period beginning on 1 October 1994 and ending on 30 September 2001, shall have performed the last six years of qualifying service while a member of a reserve component.  Outside of this time period, the member must have performed the last eight years of qualifying service while a member of a reserve component. 

As part of the National Defense Authorization Act for fiscal year 1992 Congress approved two voluntary incentive programs to assist in maximizing voluntary separations during the drawdown.  These two programs were the VSI and the SSB. 

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.  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 this requirement.

2.  The applicant may not have had evidence of active TB and his risk for developing the active disease may not have been high, but the risk was still there.  Since he had not undergone chemoprophylaxis to rid himself of the disease, for whatever reason, by regulation his condition was a cause for rejection.  It is incumbent upon the Army to accept for entrance only those individuals most qualified, including those most medically qualified, in order to perform the duties for which it exists.  The applicant was properly rejected for enlistment.

3.  The applicant not only did not complete 20 years of qualifying service for a non-regular retirement; neither did he even minimally meet the requirement to have performed the last eight (or six) years of qualifying service while a member of a reserve component.  His last service was performed while in the Regular Army.  In addition, there is no evidence of record to show the years he served in the USAR  from 1968 – 1972 were qualifying years.

4.  The VSI and SSB were programs to provide incentives to soldiers in the Army to voluntarily separate, beginning in fiscal year 1992, from the Army during the drawdown period.  It would not be appropriate to grant these benefits to the applicant who had been separated from the Army since 1988.

5.  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

__mkp___  __jhk___  __wah___  DENY APPLICATION

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

INDEX

CASE ID	AR2000046336	
SUFFIX		
RECON		
DATE BOARDED	20001128	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	136.04	
2.		
3.		
4.		
5.		
6.