RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           2 March 2004
	DOCKET NUMBER:   AR2003088146

	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	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Robert Duecaster		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that she be reinstated in the U.S. Army Reserve to complete 20 years of qualifying service. 

2.  The applicant states that she wants the opportunity to complete 20 years of service to be eligible for her pension.  She contends that she was discharged early for unjust reasons.  She states that after serving 3 years on active duty and 15 years in the active Army Reserve, she was told not to report to her Army Reserve unit because she had failed to extend her enlistment and was no longer in the Army.  She states that she was not officially notified that her enlistment had expired and therefore, she continued to report to her Reserve unit on a regular basis with pay.  She also states that she was advised to reenlist in the Army Reserve again through the normal process, but she was not approved due to medical reasons.  She further states that her tour of duty could have been completed and the medical condition would not have had any significant effect on her Army duties in regards to lost time and/or assignment restrictions.  She contends that after 18 years of honorable service to her country, she has been denied the opportunity to remain in the Army Reserve to collect her Army pension.

3.  The applicant provides a supplemental letter; her letter to a Member of Congress; a Standard Form 507 (Clinical Record); and a letter and three documents from a civilian physician from the North Shore Oncology-Hematology Associates Ltd.

CONSIDERATION OF EVIDENCE: 

1.  The applicant initially served in the Regular Army from 21 November 1984 through 20 November 1987 and was transferred to the U.S. Army Reserve (USAR) Control Group to complete her military service obligation.

2.  The applicant was promoted to staff sergeant with a date of rank of 24 August 1993.  Her last reenlistment contract is not available.

3.  The applicant's personnel records contain a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) dated 5 April 2001.  This document shows she voluntarily extended her 3-year enlistment agreement of 6 April 1998 for a period of 1 year.  The date of her new expiration of term of service (ETS) was extended to 5 April 2002.  The DA Form 4836 shows she was a member of Headquarters, 6th Brigade, 84th Division in Waukegan, Illinois serving in the rank of staff sergeant at the time of her extension.  

4.  The applicant's personnel records also contain a DA Form 4836 dated 16 March 2002 which shows she voluntarily extended her enlistment of 6 April 1998 for an additional 6 months.  The date of her new ETS was 5 October 2002. She was serving in the rank of staff sergeant at the time of her extension.

5.  In a DA Form 751 (Telephone or Verbal Conversation Record) dated 25 August 2002 obtained from the 6th Brigade, 84th Division a battalion retention noncommissioned officer (NCO) stated that he had talked to the applicant concerning her drill attendance.  The battalion retention NCO listed four task requirements and informed the applicant that all four of the requirements must be met by 27 October 2002.  The task requirements were listed as: (1) Weigh-In – Requirement by Army Regulation 600-9; (2) Complete and Pass Army Physical Fitness Test (APFT) by 23 October 2002; (3) Return Unauthorized Identification Card That Was Made While On Annual Training At Fort Dix, New Jersey; and 
(4) Last Physical Test in December 2001 – Fully Fit For Duty.  The battalion retention NCO also stated that the applicant understood all four of the requirements must be met by 27 October 2002; otherwise, her retainment in the USAR was "questionable" and she was "pending removal."

6.  In a telephone conversation on 29 January 2004 with the 6th Brigade, 84th Division, the staff of the Army Board for Correction of Military Records was informed that the applicant did not meet reenlistment criteria (APFT failure), she had less than 18 years of qualifying service as of October 2002, and she was flagged for [not meeting] body fat [standards].

7.  Headquarters, 84th Division (Institutional Training), Milwaukee, Wisconsin Orders Number 02-280-00005 dated 7 October 2002 discharged the applicant from the USAR with an effective date of 7 October 2002, two days beyond her normal ETS.  She had completed 17 years, 10 months, and 16 days of qualifying service at the time of her discharge.

8.  In support of her application, the applicant provided a copy of a Clinical Record (Continuation of Standard Form 88 (Report of Medical Examination)) dated 23 October 2002 addressed to the Commander, U.S. Army Recruiting Battalion in Chicago, Illinois.  The command surgeon disapproved the applicant's request for a medical waiver and indicated that the peculiar rigors of military training could further aggravate the medical condition in her case causing the high probability of subsequent lost time and/or assignment restriction.  The Clinical Record shows she had a physical profile of 011121.

9.  The applicant also provided a letter dated 3 December 2002 from a civilian physician at the North Shore Oncology-Hematology Associates in Illinois which states she had a history of left breast cancer.  The physician indicated that the applicant had no evidence of cancer, she was in complete remission based on his evaluation on 23 November 2002, and she had no physical restrictions.  

10.  In a 7 March 2003 letter to a Member of Congress, the applicant states, in part, that she was unaware that her tour of duty was up in April 2001.  She contends that she did not receive any written notice from the unit and continued to report to Reserve duty with pay.  In October 2001, she states that her expiration of enlistment was brought to her attention.  At that time, a battalion retention NCO did an extension for her so she would not have a break in service. She was informed in August 2002 that her enlistment had expired in April of 2002 and that she should not report for duty because she was no longer in the Army.  She was informed by an administrator in the unit that the battalion retention NCO should have never extended her enlistment and that she should have been reenlisted.  In August 2002, she was informed by a battalion retention NCO that she had to take a physical examination and pass her physical training test in order to stay in her unit.  She states that she passed the Army physical, but she did not pass the APFT because she was unable to complete the required number of pushups for her age group.  She was told that because she failed to pass the required number of pushups she would not be able to stay in the Army.  She was further informed by the battalion retention NCO that she would have to start over again by getting out of the Army and reenlisting.  She states that she broke her foot in February 2001 and was unable to take PT test for May 2001.  She also states that she was diagnosed with breast cancer in September 2001.

11.  In a letter dated 30 January 2004 from the Army Board for Correction of Military Records, the applicant was provided an opportunity to submit comments regarding the correspondence received from the 6th Brigade, 84th Division.  She responded on 15 February 2004.  The applicant submitted a duplicate of her application and other documents previously submitted including the 7 March 2003 letter to her Member of Congress.  She contends that the allegations regarding her being flagged for body fat is entirely false and that she was never formally notified or counseled for failure of meeting the body fat measurement.  She states that she passed the last body fat measurement she was given.  

12.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAGS)) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.  It states that failure to pass the APFT or failure to take the APFT within the required period requires a flag.  It also states that a flag for APFT failure blocks promotion, reenlistment, and extension of a soldier.

13.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, provides the physical standards for enlistment, appointment, and induction.  Paragraph 2-40b(2) states that malignant tumors of the breast (male or female) are causes for rejection for appointment, enlistment, and induction into military service.  

14.  Army Regulation 40-501, chapter 3, provides the standards for medical fitness for retention and separation, including retirement.  Paragraph 3-42 states that malignant neoplasms which are unresponsive to therapy are causes for referral to a Medical Evaluation Board.

15.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Paragraph 11-1c states that no soldier may be held in service beyond the normal ETS unless ETS is extended by law.  When through administrative error a soldier is not discharged on the actual date of completion of term of service, a remark will be included on his personnel evaluation record as follows:  "Retained beyond normal discharge date for the convenience of the Government."

16.  Field Manual 21-20 (Physical Fitness Training), chapter 14 states that all soldiers in the Active Army, Army National Guard, and Army Reserve must take the APFT regardless of their age.  It also states that a soldier with a temporary profile must take the regular three-event APFT after the profile has expired.  (Soldiers with temporary profiles of more than three months may take an alternate test as determined by the commander with input from health-care personnel).  Once the profile is lifted, the soldier must be given twice the time of the profile (but not more than 90 days) to train for the APFT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states she did not know her tour of duty was up in April 2001.  Her DA Form 4836 dated 5 April 2001 may have been a backdated extension.

2.  The applicant signed a DA Form 4836 dated 16 March 2002 making her new ETS 5 October 2002.  While she contends she was informed in August 2002 that her enlistment expired in April 2002, she knew she signed the DA Form 4836 in March 2002.

3.  The applicant acknowledged in a 7 March 2003 letter to a Member of Congress that she failed the APFT.  She states she broke her foot in February 2001 which prevented her from taking the May 2001 APFT.  She provided no evidence to show when her profile ended or that she could not have taken an alternate PT test.  As an NCO, she should have known APFT requirements.

4.  While the applicant rebutted the information that she failed to meet body fat standards, she did not address the APFT failure information.  An APFT failure would have blocked her reenlistment.

5.  The applicant's medical condition most likely would not have resulted in precluding her retention or reenlistment.  However, once she was discharged, upon the completion of her normal ETS, she failed to meet enlistment medical standards.

6.  The applicant was discharged from the USAR on 7 October 2002, an administrative delay of only two days beyond her normal ETS.

7.  There is no evidence which shows the applicant was erroneously or unjustly discharged from the USAR.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

FNE_____  AAO_____  RD______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		Fred N. Eichorn_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003088146	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040302	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	110.0300	
2.		
3.		
4.		
5.		
6.