PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 March 2002                   
	DOCKET NUMBER:   AR2001065227

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John P. Infante		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, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he was retired by reason of being medically unfit for retention and that he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) at that time.

3.  The applicant states that the FSM was discharged from the Alabama Army National Guard (ALARNG) effective September 1998.  On 19 January 1999, he was informed that he would be separated as being medically unfit for retention.  He was not afforded the opportunity to retire.

4.  The FSM’s military records show that he was born on 26 June 1956.  After having had prior service in the Regular Army, he enlisted in the ARNG on          30 September 1982.  He was called to active duty during Operation Desert Shield/Storm from 12 September 1990 through 12 July 1991.  

5.  On 9 March 1995, the ALARNG informed the FSM that, although he was not cleared by a Medical Duty Review Board (MDRB), he could not be separated due to guidance outlined in a Department of the Navy bulletin.  This bulletin referenced an Under Secretary of Defense memorandum which established the policy prohibiting a service member who shows symptoms associated with Persian Gulf illness from being retired or separated unless the member requested retirement or separation in writing or the member can be medically retired or separated through the disability system with an established diagnosis recognized by the Veterans Affairs Schedule of Rating Disabilities (VASRD).

6.  On 10 December 1998, the FSM was discharged from the ARNG upon the expiration of his term of service (ETS) effective 29 September 1998.  There is no evidence of record to show that the FSM requested this separation in writing.  His Retirement Points History Statement shows that he had completed exactly 16 years of qualifying service for a nonregular retirement as of 29 September 1998, the last 13 of which were served in a Reserve Component.

7.  By memorandum dated 19 January 1999, the ALARNG informed the FSM that an MDRB recommended he be separated from the ARNG as medically unfit for retention.  The FSM apparently never received or never returned his concurrence/nonconcurrence statement.

8.  The FSM died on 24 February 2000.

9.  By memorandum dated 20 July 2001, The Adjutant General, ALARNG stated that the FSM was discharged due to an oversight of the ALARNG.  He should not have been discharged upon his ETS since his unit had previously requested an MDRB on him and he should have been retained in the ARNG until the medical board was completed.  As of January 1999, the FSM had 16 years of qualifying service towards retired pay at age 60 and should have been issued a notification of eligibility for retired pay at age 60.

10.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b.  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.

11.  The authority provided by section 12731b, Title 10, U. S. Code (Public Law 103-337) existed as a force reduction/transition initiative in section 12731a(c)(3) for the period beginning 1 October 1991 and ending 30 September 2001 for those members who completed at least 15 years of service.  The individual must also have met the requirement of having performed the last 6 years of qualifying service in the Reserve Components as outlined in Title 10, U. S. Code, section 1331(a).  The intent of the new subsection was to make the authority permanent. 

CONCLUSIONS:

1.  It appears the FSM was considered by an MDRB in 1995 and not medically cleared.  Because he was a Gulf War veteran, he should not have been separated at his ETS without his written consent.  It does not appear that he gave that written consent yet he was discharged upon his ETS.  In January 1999, one month after he was notified he was discharged, he was determined to be medically unfit for retention.  

2.  The FSM had completed more than 15 years of qualifying service towards Reserve Component retired pay at age 60 at the time he was found to be medically disqualified for continued service in the Army National Guard.  Public Laws 103-337 and 106-65 provide retirement eligibility for individuals in the FSM’s situation.  It would be appropriate to show that he was retired under the provisions of those laws.

3.  It appears the FSM had a long-standing illness possibly related to his service during the Gulf War.  The Board concludes that it would be reasonable to conceive that he would have elected to enroll in the RCSBP to provide financial protection to his spouse, the applicant.

4.  In view of the foregoing, the FSM’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.  voiding the FSM’s discharge of 29 September 1998 and showing that he was retained in the service pending completion of his physical disability processing;

     b.  showing that the FSM was separated from the Army National Guard and as a Reserve of the Army by reason of medical unfitness effective 31 January 1999;

     c.  showing that on 1 February 1999 the FSM was transferred to the Retired Reserve with entitlement to Reserve retired pay/benefits at age 60 under the provisions of Public Laws 103-337 and 106-65; and

     d.  showing that the FSM enrolled in the RCSBP for spouse coverage, full base amount, option C at the time of his transfer to the Retired Reserve.

BOARD VOTE:  

__rvp___  __jpi___  __rks___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001065227	
SUFFIX		
RECON		
DATE BOARDED	20020307	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	136.03	
3.		
4.		
5.		
6.