MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           25 APRIL 2002
	DOCKET NUMBER:   AR2002067967

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Charles Gainor		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, reconsideration of his previous application to correct his records by showing that he did not voluntarily retire from active duty, and that he never completed a consent statement agreeing to be retained on active duty pending completion of a Physical Evaluation Board.  As compensation, because the Army involuntarily released him from active duty, he requests recall to active duty, promotion to colonel and payment of all back pay and allowance that would be due him.

APPLICANT STATES:  That the reason he asked the Staff of the Board (for a copy of the consent statement) is that a consent statement does not exist.  The commander of the medical treatment facility (MTF) at Fort Hood, Texas, did not forward a request for his retention endorsed by his unit commander through the Office of the Surgeon General to the Commander, PERSCOM, as required.  He has informed the Staff of the Board that a consent statement does not exist and the staff has acknowledged that they do not have a copy in their file.  Army regulations clearly state, “an officer will not be retained without his or her written consent.”  The Board was not present when his retirement orders were revoked nor does the Board have a consent statement on file.  Please explain how the Board can state that his orders were revoked due to medical reasons.  Mr. Jefferson was the only person who worked officer retirements at III Corps and Fort Hood at that time his orders were revoked, and by Army regulations, Mr. Jefferson was the only person who could have done it.  He did not revoke the orders for medical reasons.  The applicant says that even his doctor stated in his report, written after his knee operation and before his orders were revoked, that there should not be a wait period before he goes before a PEB.

He states further that he did not submit an application for retirement after revocation of his orders on 18 May 1995.  He did not meet any of the requirements set out for mandatory retirement in Army Regulation 600-8-24.  Therefore, he could only be retired if he volunteered, which he did not.

The applicant contends that the Board does not have any evidence to support their statement that his orders were revoked due to medical reasons.  Again, he asks, how can this be?  In his opinion this is racism.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records, which were summarized in a memorandum, prepared to reflect the Board’s previous consideration of this case on 3 May 2001 (AR2000041069).

The applicant’s letters of 14 December 2001 and 20 January 2002, in which he contends that he never completed a consent statement to remain on active duty while undergoing medical treatment, is considered new evidence that requires Board consideration.

Previous considerations of the applicant’s requests (there have been three prior Board reviews since 1998) do not show that the issue of a consent statement was ever raised or addressed.  The applicant contends in his letters to the Board that he never completed such a statement and that such a statement does not exist.  Documents contained in his Official Military Personnel File (OMPF) do not include a copy of a consent statement.  However, evidence obtained from the Physical Evaluation Board (PEB) Liaison Officer, Darnell Army Community Hospital, Fort Hood, Texas, includes a consent statement (Affidavit for Retention) signed on 17 May 1995, by the applicant and indicating that he desired retention on active duty beyond his scheduled date of release for the purpose of completing hospital care and/or physical disability evaluation.  The applicant was provided a copy of his 1995 consent statement.  In response he noted that the "consent statement" was merely "part of a contingency plan."  He noted, in effect, that the consent statement was invalid because his commander did not endorse it.

The applicant applied for voluntary retirement on 6 May 1994.  Orders 158-47 were published on 18 August 1994, reflecting his retirement date as 31 May 1995.  Orders 138-8, dated 18 May 1995, revoked this order.  Orders 162-0211, dated 10 June 1996, reestablished his retirement date as 30 June 1996.  The record shows that he was retired for length of service effective 1 July 1996.

The applicant says that he asked Mr. Jefferson (retirement analyst) to prepare and hold his retirement application.  In a statement dated 31 May 1996, the retirement analyst said that he requested revocation of the applicant’s “retirement orders” and they were revoked on 18 May 1996.  In a later statement dated 24 October 2000, the retirement analyst changed his statement slightly to say that at the request of the applicant, he forwarded a request for revocation of the applicant’s “approved retirement” to DA (Department of the Army).  DA approved the revocation and the retirement orders were revoked.  In neither statement does the retirement analyst make clear what prompted him to request revocation of the retirement orders.  The available records contain no documentary evidence of a request for withdrawal of the retirement application submitted by either the retirement analyst or the applicant.

On 17 May 1995, the applicant signed a consent statement.  Pursuant to this statement, a memorandum was forwarded to the Commander, US Total Army Personnel Command (PERSCOM) by the MTF on 17 May 1995, requesting that his retirement orders be revoked while he convalesced from orthopedic surgery and awaited final disposition of a Physical Evaluation Board (PEB).  The request does not contain an endorsement by the applicant’s unit commander.  However, 

the PERSCOM authorized revocation of his retirement orders (Orders 138-8, 18 May 1995) per PERSCOM Retirement Control Number R19950517142055.  On 23 April 1996, the PEB found the applicant physically fit to perform the duties of his office, grade, rank and military occupational specialty (MOS) in accordance 
with physical profile and assignment limitations.  He appealed the PEB findings, and on 5 June 1996, he was advised that after reviewing his appeal, no change to the PEB’s original findings was warranted. 

On 31 May 1996, the MTF was advised by the Physical Disability Branch, PERSCOM, that the applicant’s PEB had been approved and that he was found fit for active military service.  The PERSCOM also advised that if the soldier was scheduled for separation or retirement for reasons other than physical disability, that separation or retirement action may continue.  Accordingly, Orders 162-0211 were published on 10 June 1996, reflecting the applicant’s new retirement date as 30 June 1996.

On 22 July 1999, (in connection with the applicant’s original application to the Board) an advisory opinion was obtained from the Chief, Retirements and Separations Branch, PERSCOM, concerning retirement processing in conjunction with medical holds.  The opinion was not specific to the applicant’s case, but reflected the DA policy for processing such cases.  The opinion stated that when a soldier has an approved retirement and orders have been published, those orders are revoked if the soldier is pending evaluation by a PEB.  The retirement remains approved, only the orders are revoked.  Upon notification that the soldier is cleared by the PEB for retirement, a new PRCN (PERSCOM Retirement Control Number) is issued authorizing publication of new orders.  A new request for retirement is not required since the original retirement remained approved.

Army Regulation 600-8-24, Officer Transfers and Discharges, provides in pertinent part, that an officer may only be retained past his or her separation date for medical reasons when continued hospitalization and/or physical disability processing is required.  An officer being retired (voluntarily or involuntarily) due to maximum age or length of service will not be retained on active duty unless the medical condition requires referral to a PEB.  An officer who is medically fit for retention will not be retained beyond the established separation date.  An officer will not be retained without his or her written consent.  The commander of the MTF will forward a request for retention endorsed by the officer’s unit commander, through the Office of the Surgeon General Headquarters Department of the Army (HQDA) to the Commander, PERSCOM, for approval.  The retained officer will sign the retention affidavit.

The same regulation points out in chapter 6, retirements, that once a retirement has been approved and orders issued, it will not be amended or revoked except for promotion option, extreme compassionate reasons, or for the good of the service.  The amendment or revocation must occur prior to the retirement date.

Black’s Law Dictionary provides that the preponderance of evidence standard is that standard of proof in which the evidence “is of greater weight or more convincing than the evidence offered in opposition to it;” and the evidence “as a whole shows the fact sought to be proved is more probable than not.”

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The applicant’s contention that a consent statement (affidavit for retention) showing that he requested retention on active duty for medical treatment and evaluation by a PEB does not exist, and that the commander of the MTF at Fort Hood never forwarded such a statement to the PERSCOM, is not supported by the facts.  In his letter of 14 December 2001, he asked if the Staff of the Board had a copy of the consent statement.  At that time, he was informed that there was no such statement contained in the files maintained by the Board.  Since the Board was not the custodian of his OMPF however, he should seek the document from the Records Repository in St. Louis.

2.  Subsequent to receiving his current application, a copy of the PEB file was obtained from the MTF at Fort Hood.  This file was found to contain not only the consent statement, which the applicant had authenticated, but also the correspondence to the PERSCOM requesting revocation of his retirement orders, documents that were not contained in his OMPF.  While there is no evidence that his unit commander endorsed the memorandum to the PERSCOM, the document was addressed to and acted upon by the agency charged with handling such actions.  It appears that the applicant’s effort to first ascertain whether or not the Board had copies of the consent statement before emphatically proclaiming such a document did not exist is an attempt to deny the existence of pertinent evidence that he believed, if found, might not support his case.

3.  In any event, the applicant’s reasons for raising the issue of the consent statement are unclear and contradictory.  The purpose of a consent statement is to permit retention of an officer on active duty for treatment or further evaluation.  Absent the statement, signed by the officer himself, and he could expect to be 

released without the treatment/evaluation.  The applicant argues, however, that he never completed such a statement; therefore, he should have been retained on active duty, an argument that is exactly contradictory to the purpose of the consent statement.  Nevertheless, even if such a statement did not exist in this case, it would be appropriate for the Board to consider its absence a harmless error, since the applicant was obviously pending further medical evaluation and should properly be allowed to remain on active duty and continue to receive pay and allowances and longevity credit until the PEB had finalized his case.

4.  Notwithstanding the foregoing, considering the date the applicant signed the consent statement (17 May 1995), the date the request for revocation of his retirement order was forwarded to PERSCOM (17 May 1995), and the date his retirement orders were revoked (18 May 1995), the preponderance of the evidence suggests these actions were not mere coincidence.  Rather, his orders were revoked because of his pending PEB.  He offers no rationale for this sequence of events other than he did not voluntarily request to retire, and neither he nor the MTF completed a consent statement for him to remain on active duty.

5.  The applicant submitted a voluntary retirement application on 6 May 1994, which was accepted and approved by DA.  Despite his contentions to the contrary, there is no evidence in his record nor has he provided any evidence to show that he attempted to withdraw that application.  Since he did not satisfy any of the regulatory reasons for withdrawal of the application, i.e. promotion option, extreme compassionate reasons, or for the good of the service, it is reasonable to assume that a withdrawal request would have been unsuccessful.  It is also significant to note the opinion offered by the PERSCOM, Chief of Retirements and Separations Branch regarding the processing of retirements when complicated by medical hold circumstances.  In such cases, the retirement order, not the retirement application, is revoked when an soldier is pending a PEB.  Upon determination that the soldier has been cleared by the PEB, a new retirement order is published.  A new retirement application is not required since the original application remained in effect.

6.  After examining all of the available evidence in this case, it is fair to conclude that the applicant was properly retained on active duty at his own request for the purpose of undergoing a PEB, and that his retirement orders were correctly revoked to permit completion of that action.  Nothing in his contentions establishes by clear and convincing evidence that he was wrongly retired.  In light of this finding, there is no basis for his recall to active duty or promotion to the grade of colonel. 

7.  Finally, the applicant has provided no foundation to support his allegation that he was a victim of racism in the processing of his retirement case.

8.  In view of the foregoing, the overall merits of this case, including the latest submissions are insufficient as a basis for the Board to reverse its previous decision.  Accordingly, 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

__JL____  __GDP __  __CG___  DENY APPLICATION

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

INDEX

CASE ID	AR2002067967	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020425	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  	136.06	
2.		
3.		
4.		
5.		
6.