PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           31 January 2002                  
	DOCKET NUMBER:   AR2001054040

	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 . W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Ms. Regan K. Smith		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 reconsideration of his earlier appeal to correct his military records by voiding his separation from the Army National Guard (ANG) due to weight control failure, restoring him to an active Army Reserve (USAR) status, and crediting him with pay and points until the date of the Board’s action on his case.  In effect, the applicant defers to his counsel to present the case.

3.  Counsel contends, in effect, that the applicant is entitled to the relief sought because he was denied due process in that he was entitled to a board of officers.  Counsel cites the advisory opinion to substantiate his argument and notes that the Government has admitted that the applicant was improperly separated.  Counsel contends that the suggestion contained in the advisory opinion as to the drill credit and pay due the applicant should be disregarded. 

4.  On 29 January 1999 the applicant’s original, 23 June 1997, appeal was administratively closed because the wording of the request and the available documentation indicated that the Board lacked jurisdiction. 

5.  Subsequently, the Board considered the case.  The Memorandum of Consideration (MOC) of the Board’s 22 June 2000 review of his request (AR1999019572) is incorporated herein by reference as if wholly set forth.

6.  The original review was inadvertently conducted without considering the advisory opinion or the applicant’s rebuttal.  Therefore, the advisory opinion and the applicant’s rebuttal are new evidence that require Board consideration.

7.  The applicant’s record and original MOC reflect that the applicant was a dual status (civilian support technician-drilling guardsman) member of the Oregon ANG.  He entered the weight control program on 14 December 1986 and was separated as a staff sergeant (E-6), on 1 June 1987 for failure of the Army’s weight control program.  He was transferred to the Army Reserve (USAR), Individual Ready Reserve (IRR) with 16 Years, 6 months and 1 day of creditable service for pay purposes and for qualifying service for reserve retirement at age 60.  He was discharged from the USAR Control Group on 19 October 1991.

8.  A 12 February 1987 letter from the Progressive Chiropractic Clinic states that the applicant was being treated for a colon disorder that required a “specific dietary routine as well as supplementation…He also suffers from a hypolipidemia condition which requires a modified diet relative to his normal routine intake.  A combination of these two conditions, I am sure have contributed markedly to his inability to lose weight and also to maintain his current weight.”

9.  A 27 March 1987 handwritten letter from the applicant to the unit commander (CO) requested that the CO assume direct cognizance over his case because of a personality conflict with Lieutenant J____, apparently the unit’s executive officer (XO).  He wrote that he had observed the XO to be lacking in compassion, dispassion, thoroughness and impartiality.  He wanted the CO to investigate the ramifications of the evidence that his inability to lose weight was the result of a stress related eating disorder.  He contended that programs like the drug and alcohol abuse program demonstrated that he should receive help with his overweight problem.  He suggested that maybe he should be afforded a residential treatment program.  He stated that “the failure of the Medical Company to field a model is a gross sadness and doubly unacceptable.” He requested in addition to “those items requested in my letter to LT J…an exercise program suited to my needs as an individual…a nutritional program likewise suited to my needs…The stress of our jobs must be reduced.”  He wanted these efforts extended beyond the company in such a way as to affect the “management style” of the battalion.  He complained that the battalion adjutant produced a “blackly negative, oppressive atmosphere which I find is impossible to work effectively under, and which makes it tremendously difficult for me to achieve the desired AR 600-9 compliance.  I…have brought much of this to your attention before…still look to you…for remedy.” 

10.  A 5 April 1987 memorandum from the company commander, a Medical Corps major, requested that the applicant be evaluated for medical retirement due to multiple injuries of the right flank and arthritis involving several joints particularly the hands and load bearing joints.  It noted that the applicant, “is not now capable of passing the APFT” due to the arthritis and that his condition was not expected to improve.  Reportedly “…The physical discomfort and pain resulting…inhibits [the applicant] from performing his medical duties…particularly in a field hospital…negatively affect his overall endurance and stamina; lessen his efficiency…and render him significantly less resilient to stressful or demanding work or training situations.…”  The battalion adjutant returned the request without action noting that the referenced injuries were sustained during the applicant’s employment as a civilian technician.  Although the applicant protested that decision in a memo, no further action was taken.

11.  During the processing of this case a 20 July 1998 advisory opinion was obtained from the National Guard Bureau (NGB).  The Chief, Personnel Division advised that the applicant had been improperly separated in that he was entitled to be represented by counsel and to appear before a board of officers.  Although she observed that, “Had the Army National Guard followed the required procedures the outcome would probably have been the same…” she also supported the applicant’s claim for relief.  She recommended that the Board 

either place the applicant on the retired list as disabled based on the unit commander’s 5 April 1987 memorandum or credited with pay and points for a reasonable period (6 months) during which separation processing could have been properly accomplished or until the applicant reached 20 years of qualifying service.  The chief of the NGB’s personnel division recommended relief at the rate of 75 (15 inactive duty training (IDT) points and 15 active duty training (AT) points per year.  She argued that his overweight condition would have precluded him from greater participation, making his demand for 125 points per year invalid.

12.  In rebuttal to the advisory opinion applicant’s counsel contended that the “February 12, 1987 letter from his treating physician” established conclusively that the applicant had a medical basis for his inability to lose weight.  Counsel believed the Board should discount the NGB’s suggestions that the applicant would possibly have been discharged even if he had been afforded a board of officers.  Counsel offers that, given that there are so many overweight officers on the Oregon Adjutant General’s staff, the applicant would conceivably have been retained.  Counsel also argued that the Board should disregard the NGB’s advice about the drill credit and pay due the applicant, contending that there was no real foundation to argue that he would have been precluded from performing active duty training.  He contended that the applicant should be credited and paid for 125 points per year based upon his average annual participation over the past 5 years.

13.  National Guard Regulation 600-200 sets forth the policy and procedures for Army National Guard personnel administration.    Paragraph 7-10 of the regulation, as then in effect, specifies that the policies and procedures of Army Regulation 135-178 applies to situations in which the individual is being separated from the Army National Guard but not from the Army Reserve.

14.  Army Regulation (AR) 135-178 Personnel, Separation of Enlisted Personnel (Army National Guard and Army Reserve), as then in effect, provides, in paragraph 2-3 that “The enlisted member will be notified in writing by the immediate commander when required under a specific reason for separation.  (See fig 2-1.)  Figure 2-1, “Sample letter for separation under AR 135-178” provides that the notification procedure is required in various circumstances including, Convenience of the Government under paragraph 4-25.  It lists the individual’s due process rights, as the right to consult with and be represented by counsel, to appear before an administrative separation board, to waive the above rights and to withdraw said waiver prior to the separation authority’s action. 

15.  AR 135-178 paragraph 4-25 provides that “Members who fail to meet the weight control standards set forth in AR 600-9 may be separated per this paragraph when such condition is the sole basis for separation.”

16.  According to Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) and the Department of Defense Instruction (DODI) 1215.7 (Service Credit for Reserve Retirement), dated 1 March 2001, the maximum number of Reserve retirement points that can be credited each year (cap rule) for Inactive Duty Training (IDT) points, plus extension courses points, plus membership points.  Prior to the date 23 September 1996, the retirement points cap rule was 60 points per year.  

17.  The applicant’s record shows that, as a drilling guardsman, he earned an average of 94 days pay annually for the 3 full years immediately prior to his separation.  When  points for membership and, correspondence courses and miscellaneous duties, and the cap rule limitation are factored in he is limited to an annual average of 91 retirement points for the same period.

CONCLUSIONS:

1.  The applicant was denied due process in that the governing regulation required that he be offered a board of officers and representation by counsel.  This is in consonance with the advisory opinion from the NGB.

2.  The chief of the NGB’s personnel division’s opinion that the applicant would have probably been separated as the result of a board of officers is also noted. The Board notes counsel’s contention that it cannot conclude that this result would have occurred.  However, it is within the Board’s authority to review the facts of the case and conclude that, although an error occurred, the applicant was not disadvantaged thereby.  Nevertheless, the Board generally does not make such judgments in cases, like this one, where more than one outcome could reasonably have occurred.  The applicant was improperly separated and deprived of pay and points.  He should be made whole to the extent that the Board can determine what relief is reasonably due. 

3.  In cases of this nature the Board considers it to be in the interest of justice to grant the applicant relief based upon the individual’s demonstrated history of average annual participation and the overall circumstances of the case. 

4.  He would not have been allowed to continue participation at the previous level.  Had his case gone to a board of officers he might have been retained, but his situation would not have gone unchanged and the changes would have been the result of the applicant’s own behavior and perhaps his physical problems.  Likewise, he is not entitled to any credit for service beyond 20 years of qualifying service.  He apparently made no effort to continue significant participation in the Army Reserve after his release from the National Guard.

5. The applicant is not entitled to an average of 125 days pay and points per annum.  This figure includes points that are excluded by the cap rule and points that were never paid (such as membership and correspondence course points).  

6.  It is appropriate to correct the applicant’s record to award him retirement points and pay him at an annual rate that reflects both his participation history and the reality of the situation.  He should be credited with 48 inactive duty (IDT) points, 12 additional training assembly (ATA) points and 15 days annual training (AT) for pay, and awarding him 4 additional IDT non-paid points until he achieves 20 creditable years for Reserve Retired pay at age 60 and he should be issued a 20-year letter. 

7.  He is not entitled to pay and points until this Board acts on his case or interest on the unpaid amounts.  Payments may be authorized only to the extent that they are the direct result of a correction of a military record and the money is not due until the record correction is authorized; therefore no interest is due.  Furthermore, the applicant is solely responsible for 10 years of the delay (he did not apply to this Board until 1997.

8.  There is no available evidence that the applicant was eligible for physical disability separation or retirement.  The unit commander stated that his physical problems inhibited his performance of duty, but the injuries that were the basis of those problems were incurred in the course of the applicant’s civilian employment.

10.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error and rectify an injustice.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

a.  voiding the 1 June 1987 separation of the individual concerned from the Army National Guard and the concurrent transfer to the USAR, IRR;

b.  awarding and paying him at the average annual rate of 48 inactive duty (IDT) points, 12 additional training assembly (ATA) points and 15 days annual training (AT), awarding him 4 additional IDT non-paid points and 15 membership points for an annual total of 94 retirement points from 1 June 1987 until 30 November 1990 when he reaches 20 years creditable service for retired pay at age 60.

d.  issuing him a 20-year letter showing that he is entitled to Reserve Retired pay at age 60; and

f.  transferring him to the Retired Reserve on 30 November 1990.
 
2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__RVO__  ___EJA__  __RKS__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O'Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2001054040	
SUFFIX		
RECON		
DATE BOARDED	20020131	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	MODIFY	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.