MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  5 November 2002
	DOCKET NUMBER:  AR2002074186

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Eric N. Andersen		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:  Reconsideration of his previous application to correct his records by showing that he involuntarily separated from the Army Reserve because of medical unfitness and elected transfer to the Retired Reserve with eligibility for retired pay at age 60.

APPLICANT STATES:  That the additional documents he provides now show that he was involved in a motor vehicle accident on 8 March 1996, was treated for his injuries from 9 March 1996 through 12 May 1997, and was unable to continue Reserve training because of his injuries.  He also does not recall receiving instructions to report for a medical examination.  He states that he would not have missed such an appointment to prove the severity of his injuries.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 20 September 2001 (AR2001055594).

The applicant submits a copy of the police department incident report of 8 March 1996, which shows that the applicant's vehicle was struck from behind by another vehicle resulting in "very light fender damage to both vehicles."  The block concerning nature of injury shows "N/A."

The applicant submits copies of civilian medical reports concerning his treatment for back and shoulder pain beginning on 9 March 1996 and continuing through 12 May 1997.  A 5 June 1997 report from his civilian physician provides diagnosis of 1) Strain-sprain cervical-thoracic-lumbar spine, 2) Cerebral concussion, 3) Shoulder sprain, 4) Bulging discs at C3-4-5-6-7, disc protrusion at L1-2, L5-S1.  The doctor states that he had released the applicant from his care as of 2 June 1997 but he still had some remaining residual symptoms.  His conditions would cause loss of range of motion and would result in a 15 percent serious impairment of bodily function in the back and neck.

The applicant provides a new Chronological Statement of Retirement Points that shows he is credited with 19 years and 2 days of qualifying service for retirement at age 60.  The statement also shows that he has only 5 years of Reserve Component service qualifying for retirement at age 60.  Based on his date of birth of 3 September 1958, his date of mandatory removal was not until 30 September 2018.

The applicant states that he does not remember being scheduled for a physical examination to support his continued absences.  His records contain a copy of a 15 August 1996 memorandum from his unit commander concerning his absence from unit training on 10 and 11 August 1996.  Page two of the memorandum, in paragraph 11, states that the applicant was scheduled for a profile physical on 7 September 1996, at 1000 hours.  The return receipt for this document shows that the applicant signed for it on 16 August 1996.

As stated in the 20 September 2001 Memorandum of Consideration of the applicant's prior case review, the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a(c).  The modification allowed Reserve Component soldiers who were 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.  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, United States Code, section 1331(a) and the new subsection (f).

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.  The evidence of record clearly shows that the applicant signed for receipt of the notification that he was scheduled for a profile physical on 7 September 1996.  He failed to meet the scheduled appointment and took no further steps to request transfer or discharge for medical reasons.

2.  Additionally, the applicant did not meet the statutory requirement of the Public Law for early retirement because he did not perform the last 6 years of qualifying service in a Reserve Component.  If otherwise qualified, he has almost 16 years to obtain additional qualifying service for retirement.

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

4.  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

__mm___  ___jm__  ___ea___  DENY APPLICATION

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

INDEX

CASE ID	AR2002074186	
SUFFIX		
RECON		
DATE BOARDED	20021105	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.05	
2.		
3.		
4.		
5.		
6.