RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  2 March 2004
	DOCKET NUMBER:  AR2003091087

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Robert Duecaster		Member	
	Mr. Arthur A. Omartian		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, in effect, that his discharge be revoked and that he be transferred to the Retired Reserve with reinstatement of his Voluntary Separation Incentive (VSI) payments.

2.  The applicant states that he was not properly advised on how to transfer to the Retired Reserve and maintain eligibility for VSI based on his medical disqualification for retention.

3.  The applicant provides copies of his civilian medical records concerning the removal of his larynx.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error, which occurred on 21 March 2000, the date of his discharge.  The application submitted in this case is dated 7 April 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  At the time of his separation from active duty the applicant was a unit supply specialist in the pay grade of E-6.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he had 14 years, 5 months, and 8 days active duty service and was transferred to the Individual Ready Reserve effective 2 August 1992.  His DD Form 214 also shows that he was entitled to an annual VSI payment of $7,696.82 for 28 years under the Voluntary Early Transition Program.

4.  Effective 3 August 1992 the applicant enlisted in the Army Reserve for 3 years in the pay grade of E-6.

5.  The applicant provides copies of civilian medical reports that show he had an operation on 20 August 1994 for total removal of his larynx due to cancer.

6.  Effective 21 March 2000, the applicant was discharged for expiration of term of service (ETS).  His last VSI payment was dispersed in August 1999.  There is no information in the available record to indicate that he was contacted about reenlistment or the requirement for an updated physical prior to his discharge.
7.  In the processing of this case an advisory opinion was provided by the Office of The Surgeon General (OTSG).  The opinion notes that total removal of the larynx is not covered specifically by chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness), but paragraph 3-42a. does provide that "Malignant neoplasms that are unresponsive to therapy, or when the residuals themselves are unfitting under other provisions of this chapter are medically disqualifying."  Additionally, paragraph 3-41e(1) and (2) states that "Miscellaneous conditions and defects not mentioned elsewhere in this chapter are medically disqualifying if the condition results in unsatisfactory performance of duty or the individuals health or well being would be compromised if he or she were to remain in the service."  Paragraph 3-29b(1) further states that "Paralysis of the Larynx characterized by bilateral vocal cord paralysis seriously interfering with speech and adequate airway is medically disqualifying."

8.  The opinion concludes that, although the applicant's condition is not paralysis of the larynx affecting speech, but rather the absence of his larynx that has resulted in complete loss of speech (Aphonia), the intent of AR 40-501 is that any soldier who has a non-functioning or absent larynx does not meet medical retention standards regardless of whether the soldier is able to use a prosthesis for verbal communication.  The applicant concurred with the advisory opinion on 6 February 2004.

9.  Army Regulation 135-178, paragraph 12-1, Medically unfit for retention, states that Reserve enlisted soldiers who are no longer qualified for retention by reason of medical unfitness under the standards of AR 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation Including Retirement) will be discharged unless they are granted a waiver of the medical disqualification or are eligible and request transfer to the Retired Reserve under Army Regulation 140-10, paragraph 6-1.

10.  Army Regulation 140-10, paragraph 6-1, Eligibility, states that Reserve members are eligible for transfer to the Retired Reserve if they are medically disqualified not as a result of their own misconduct for retention in an active status (Ready Reserve) or entry on active duty, regardless of the total years of service completed.

11.  Army Regulation 135-178 establishes the policies, standards, and procedures governing the administrative separation of enlisted soldiers from the Reserve Components.  Paragraph 1-3 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was evidence of manifest error or fraud.  After the effective date of discharge, orders can be amended by the separation authority only to correct manifest errors such as the wrong character of service or to correct administrative errors such as rank, social security number, or misspelled name.
12.  Paragraph 11-1 of the same regulation pertains to completion of terms of enlistment or period of statutory obligated service.  The period of military service for all enlisted soldiers of the Army will be accordance with applicable laws.  On expiration of term of enlistment, reenlistment, or period of statutorily obligated service, the separation authority will discharge the soldier.  Soldiers will not be held in service beyond their normal ETS unless their ETS is extended by law.

13.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 6 pertains to transfer to the Retired Reserve.  It states that assignment to the Retired Reserve is authorized after completion of 20 years active or inactive service in the Armed Forces. 

14.  Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

15.  The National Defense Authorization Act of Fiscal Year 1992, to assist in maximizing voluntary separation during the drawdown period of military forces, established a separation incentive called the VSI.  The VSI pays an annual annuity payment equal to 2.5 percent of the soldier’s annual basic pay at separation from the active Army multiplied by the soldier's number of years of service and paid for twice the number of years the soldier had served at the time of separation.  Soldiers approved for VSI must be appointed, enlisted, or transferred to the Ready Reserve for the entire period that they receive VSI annual payments.  A VSI recipient must remain eligible for retention or reenlistment in the Ready Reserve by maintaining Army weight standards, completing a military physical examination every five years, keeping their residence address and phone number updated, and responding to all official written and telephonic correspondence.  Enlisted VSI recipients must reenlist at the end of each term of service.

16.  If the VSI recipient fails to remain eligible or reenlist, the soldier will be separated from the Reserve and the VSI annual payments will be discontinued.  If a VSI recipient becomes ineligible to continue to serve in the Ready Reserve, through no fault of his or her own, the soldier will be transferred to the Retired Reserve and continue to receive annual VSI payments for the remaining period authorized for VSI.  At age 60, the VSI recipients will automatically be transferred to the Retired Reserve and continue to receive annual VSI payments for the remaining period authorized for VSI.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was honorably separated from active duty on 2 August 1992, under the Voluntary Early Release Program.  He was entitled to VSI in the amount of $7,696.82 for 28 years provided that he continued to serve in a Reserve Component during the entire period that he receives VSI entitlements unless separated for medical, age, or service limitations.

2.  Although the applicant should have been aware of his pending ETS, there is no evidence that he was notified about reenlistment or the requirement for an updated physical examination.

3.  The evidence of record clearly shows that the applicant had an operation on 20 August 1994 for total removal of his larynx due to cancer and that, had he been directed to update his physical status, it would have resulted in a determination that he was not qualified for retention.

4.  The opinion from the OTSG provides sufficient justification to show that the intent of Army Regulation 40-501 for determining the applicant's unfitness for retention was met by the removal of his larynx.  Had the applicant been found unfit for retention it is reasonable to assume that he would have elected transfer to the Retired Reserve to maintain his VSI status in accordance with Army Regulation 135-178.

BOARD VOTE:

___fe___  ___rd___  ___ao___  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  revoking his 21 March 2000 discharge from the Army Reserve;

	b.  issuing orders to show that he was transferred to the Retired Reserve effective 21 March 2000 by reason of medically unfit for retention;
	c.  providing him VSI payments from 2000 through the current payment date; and

d.  by restoring his entitlement to annual VSI payments.

		____Fred N. Eichorn___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090187	
SUFFIX		
RECON		
DATE BOARDED	20040302	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	136.05	
2.	128.00	
3.		
4.		
5.		
6.