PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                 22 June 2000
	DOCKET NUMBER:        AR1999030177

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger Able		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 his discharge from the USAR be voided and that he instead be transferred to the Retired Reserve and medically retired.

3.  The applicant states that he was discharged due to medical disqualification for retention.  He also states that he was misinformed on Retired Reserve and Medical Retirement.  In support of his application he submits a copy of his 
20 year letter, copy of his ARPC Form 249-E (Chronological Statement of Retirement Points), copy of DA Form 3349 (Physical Profile), copy of his Request for Reserve Component Assignment or Attachment, copy of a memorandum (Discharge Due to Medical Disqualification for Retention), dated 26 October 1998 and a copy of a memorandum (Request for Medical Retirement), dated 6 July 1998.

4.  The applicant’s military records show he enlisted in the Regular Army on 15 November 1976 and continued to serve until he was honorably discharged on 14 November 1979.  He was transferred to the USAR on 15 November 1979 and continued to serve through a series of continuous reenlistments.

5.  On 18 December 1996 the Army Reserve Personnel Center (ARPERCEN) notified the applicant (20 year letter) that he had completed the required years of service to be eligible for retired pay, upon application, at age 60 (23 September 2016).

6.  The applicant provided a copy of his physical profile dated 7 June 1998, which shows that he was issued a permanent profile of 211211.  His profile also shows the entry “Recommended Medical Retention Board Review”.

7.  The applicant provided a copy of a memorandum dated 6 July 1998, which shows that he submitted a requested for medical retirement.  The memorandum also indicated that the applicant had a preexisting injury and service contacted and that he would be scheduled for a Medical Evaluation Board (MEB) upon receipt of his physical with the appropriate box checked

8.  The applicant provided a copy of a memorandum dated 26 October 1998, which shows that the applicant elected discharge from the USAR due to medical disqualification for retention instead of transfer to the Retired Reserve.  The memorandum also indicated that the applicant had 15 days from the date of receipt of this memorandum in which to make his reply and should he fail to reply that he would be discharged.

9.  On 6 November 1998 the applicant submitted his request for discharge under the provisions of Army Regulation 40-501, chapter 9, for medically unfit for retention.

10.  On 27 November 1998 the applicant was honorably discharged due to medical disqualification for retention.

11.  The applicant’s MEB and medical records are unavailable for review by this Board.

12.  Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail and transfer of USAR soldiers.  Chapter 7 of the regulation relates to the removal of soldiers from 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.

13.  Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative separation of enlisted soldiers from the reserve components.  Paragraph 1-3 stated, in pertinent part,
that orders discharging a soldier would not be revoked or the effective date changed after the effective dates of discharge unless there was evidence of 
manifest error or fraud.  After the effective date of discharge, orders could be amended by the separation authority only to correct manifest errors such as the wrong character or service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

14.  Due to recent Departmental changes, certain benefits, such as commissary and post exchanges privileges, accrue to Reservist with more than 20 years of 
qualifying service who are transferred to the Retired Reserve that do not accrue
to those who are discharged.

15.  On 19 October 1999, the Under Secretary of Defense published a 
memorandum on Former Reserve Members Entitlements.  It stated that former members of the Reserve Components who are eligible to receive pay at age 60 under 10 U.S.C. Section 12731, but who have terminated their Reserve status, are entitled to receive benefits provided for under Title 10 U.S.C., Chapter 54.  Identification Cards (ID) reflecting the appropriate benefits will be available at Realtime Automated Personnel Identification System sites in December 1999.

16.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his officer, rank, grade or rating because of disability incurred while entitled to basic pay.

17.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower 
extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designators “2” and “3” indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.

18.  Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite impairment would be considered presumptive evidence of physical fitness.

19.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed, that the applicant’s separation was accomplished in accordance with law and regulations applicable at the time.

2.  It is apparent that the applicant was qualified for transfer to the Retired Reserve as indicated by the issuance of a 20 year letter; however, the applicant elected to be discharged from the USAR due to medical disqualification for retention as indicated by the memorandum dated 26 October 1998.

3.  It also appears that had the applicant been given the correct information on 
medical retirement he would have elected to be transferred to the Retired Reserved.

4.  Inasmuch as the applicant meets eligibility requirements for assignment to the
Retired Reserve, it would be equitable and just to correct his military records by voiding his discharge of 27 November 1998 and assigning him to the Retired Reserve effective the same date.

5.  The Board noted that the applicant’s contention that he should be medically retired.  The Board also noted that the applicant was issued a permanent profile of 211211 on 7 June 1998, which recommended medical retention board review 

and that he submitted a requested for medical retirement on 6 July 1998.  The Board further noted that the memorandum dated 6 July 1998 indicated that the applicant had a preexisting injury and service connected.  The memorandum also indicated that the applicant would be scheduled for a MEB upon receipt of his physical with the appropriate box checked.  However, he was found to be unfit for retention and elected to be discharged from the USAR due to medical disqualification for retention.  He was also afforded the opportunity to request consideration for a waiver of his medical condition by the medical review authority; however, he failed to do so and was honorably discharged.  

6.  It should be noted that the mere presence of an impairment or the fact that a person is able to enlist in the service before the impairment is detected, does not, in itself, constitute service-connection or a right to a medical retirement.

7.  In view of the foregoing findings, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by voiding the 27 November 1998 discharge from the USAR of the individual concerned; and

b.  by showing that he was transferred to the Retired Reserve effective 27 November 1998.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

LLS____  AAO ______ RA_____ GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_ _Luther L. Santiful___
		        CHAIRPERSON

INDEX

CASE ID	AR1999030177	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000622	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19981127	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT/DENY	
REVIEW AUTHORITY		
ISSUES         1.  177		
2.		
3.		
4.		
5.		
6.