PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  26 April 2000
	DOCKET NUMBER:   AR1999030623

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Karol A. Kennedy		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 that his discharge from the USAR for expiration of term of service (ETS) be changed to physical disability.

3.  The applicant states that he had high blood pressure and a respiratory condition.  He was also improperly barred from reenlistment with over 18 years of service but his records only showed 16 years of service.  He submits a copy of his Social Security Administration (SSA) decision for disability in support of his application.

4.  The applicant’s available military records show that he enlisted in the USAR at 47 years of age with 1 year and 2 months prior active duty and 8 years and 2 months USAR service.  Only two pages of the original USAR enlistment documents are in the available record. He extended his first enlistment on 10 January 1981 for 1 year.

5.  On 9 January 1982 the applicant reenlisted for 6 years in the USAR in his current pay grade of E-6.  None of the enlistment documents contain a waiver acknowledging that he will not be eligible to remain in the USAR until retirement eligibility based on his age and years of service.  A partial reenlistment document dated, 14 September 1985, is in the available record but it is not possible to determine if it was executed or denied.

6.  In approximately July 1986 the applicant, through his representative in Congress, began to inquire about his correct credits for retirement points.  His unit also attempted to locate possible missing records from the 1950’s.  It appears that some retirement points were added to his records in December 1986.  Additionally, the unit attempted to obtain a waiver of his mandatory removal date based on age 60.  The denial from the Reserve Personnel Center (ARPERCEN) opined that the applicant’s enlistment and subsequent reenlistments were erroneous since they did not contain an acknowledgement from the applicant that he would not be retained beyond age 60 to qualify for retirement benefits.  Additionally he should have been discharged upon discovery of the error and must now be discharged when he reaches age 60.

7.  On 7 January 1988 the applicant and his commander signed a request for transfer (discharge) based on his ETS of 8 January 1988.  Effective 11 February 1988 the applicant was discharged from the USAR under authority of AR 135-178.

8.  A 9 August 1987 statement of retirement points shows that he was credited with 1 year, 2 months, and 3 days active duty and 8 years and 2 months USAR service.  This statement also shows that only 3 of his 8 years of USAR service were qualifying years (50 points) for retirement.  His first retirement year ending (RYE) date is shown as 30 June 1949 but his second retirement year and 8 succeeding years are shown as 30 November 1950 through 1957.  His continuous service ends on 27 January 1958 with a break in service.

9.  The applicant’s enlistment in March 1975 established a new RYE of 7 March 1976 and each succeeding year is the same.  His total years of qualifying service for retirement is shown as 16 years, 2 months, and 3 days.  A current retirement points statement shows that he had a qualifying year from 8 March 1987 to 11 February 1988 with 64 points and 17 years, 2 months and 3 days qualifying for retirement.

10.  The notice of disability decision from the SSA states that the applicant has an approved SSA disability effective 2 January 1987 based on a long history of severe lung disease and damaged heart tissue restricting blood flow.  He had worked in a steel mill almost 38 years.

11.  The applicant’s available medical records show that he had no health complaints on his February 1975 enlistment physical examination and was qualified for enlistment with a profile of 1 1 1 1 1 1.  His 10 September 1979 quadrennial examination showed an enlarged prostate, and three surgical scars, one on the left knee, one from an appendectomy, and one on his lower spine.  There was no indication that any of these conditions were related to military service.  He was qualified for retention with a profile of 1 1 1 1 2 1.  The 2 was based on defective vision.

12.  The applicant’s quadrennial examination in May 1983 repeated the comments about surgical scars but noted a normal prostate.  All of his blood pressure and pulse rates were within normal limits.  He was again found qualified for retention with a profile of 1 1 1 1 1 1.  His final quadrennial examination in February 1987 noted a history of asthma attacks controlled by medication, hypertension, and an abnormal cardiovascular screening.  He was not cleared for the Army Over-40 physical training program but was qualified for retention with a profile of 3 1 1 1 2 1.  The 3 was for overall physical capacity or stamina and the 2 was again for vision defects.  There was still no indication that any of his health problems were incident to his military service.

13.  AR 140-111 provides the policy for enlistment/reenlistment in the USAR.  Table 2-1 provides the basic eligibility criteria and notes that if the applicant is unable to complete 20 qualifying years of service for retired pay by age 60, they are disqualified in accordance with table 4-2, rule F.  Table 4-2 lists the nonwaivable disqualifications for enlistment/reenlistment.  Rule F pertains to the requirement to complete 20 qualifying years for retirement prior to age 60 and refers to note 2.  Note 2 states that the Commander ARPERCEN may approve a member to remain in the USAR (reenlist) when it is determined that there is an implied or actual moral obligation incurred by the USAR to permit the member to remain in the USAR to qualify for retired pay based on long service in the USAR.

14.  Army Regulation 135-180, applicable to Reserve personnel, prescribes the policy and procedures for granting retired pay benefits at age 60 under Title 10, United States Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in part, that to be eligible for retired pay, an individual must have attained age 60, and have completed a minimum of 20 years of qualifying service.

15.  Title 10, section 1176(b) provides that a Reserve enlisted member serving in an active status who is denied reenlistment (other than for physical disability or cause), and who on the date he is to be discharged is entitled to be credited with at least 18 but less than 20 qualifying years of service, may not be discharged without the members consent before the date on which the member is entitled to be credited with 20 qualifying years of service but not later than the third anniversary of the date on which he would have otherwise been discharged.

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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

17.  Army Regulation 635-40, paragraph 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

18.  Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.

19.  Army Regulation 635-40, chapter 8, Reserve Components, in effect during the period of time in question, provided that if an individual suffered a disability from disease incurred while performing duty prior to 15 November 1986, he or she was ineligible for disability processing unless a medical authority had determined that the disease was the result of a service-connected injury.

20.  An individual who incurred or aggravated any injury or disease on or after 15 November 1986 while performing inactive or active duty training is eligible for disability processing.  Referral for processing does not mean an automatic entitlement to disability compensation.  Once referred, a determination must be made whether the disease was the proximate result of performing duty.

CONCLUSIONS:

1.  Neither the evidence of record or that submitted by the applicant provide the evidence necessary to establish that he incurred an injury or illness incident to military service that required separation processing by reason of physical disability.

2.  Notwithstanding ARPERCEN’s authority to deny the applicant’s request of a reenlistment waiver, an error occurred when he was not informed at any time during his final 13 years of USAR service that he would not be eligible for retention until completion of 20 years of qualifying service for retirement.

3.  An additional error occurred when his RYE and his corresponding retirement points were never recalculated.  It is possible that a recalculation may have resulted in an additional creditable year for retirement that was previously recorded as less than a 50-point year.  Furthermore, this recalculation may have resulted in credit for 18 years of qualifying service for retirement and his retention by law until completion of 20 qualifying years of service for retirement.

4.  It would now be in the interest of justice to correct his record of USAR service and amend his statement of retirement points in the following manner:

	a.  revoke his discharge effective 11 February 1988 and show that his enlistment was extended by 2 years and 2 months, to 7 March 1990, as an exception to policy.

	b.  change his RYE for his first year of active duty to show 30 August 1949, his active duty points to show 365, and his years qualifying for retirement as 1.

	c.  change the organization code for his second RYE to show code 49 (transition year), his active duty points to 65, and his years qualifying for retirement as 1.
	d.  add 48 inactive duty points, 15 active duty points representing annual training attendance, and change his years qualifying for retirement as 1 to the two retirement years subsequent to his original discharge date of 11 February 1988.

5.  Based on the additional points added to the applicant’s RYE in 1989 and 1990 it would be appropriate to authorize the resulting pay and allowances authorized at the time and to pay him the corresponding monies.

6.  His completion of 20 years of qualifying service now being recorded, the applicant should be placed in the Retired Reserve effective 8 March 1990 and entitled to Retired Pay effective the date of these Board Proceedings.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

a.  revoking his discharge effective 11 February 1988 and show that his enlistment was extended by 2 years and 2 months, to 7 March 1990, as an exception to policy;

	b.  changing his RYE for his first year of active duty to show 30 August 1949, his active duty points to show 365, and his years qualifying for retirement as 1;

	c.  changing the organization code for his second RYE to show code 49 (transition year), his active duty points to 65, and his years qualifying for retirement as 1;and

	d.  adding 48 inactive duty points, 15 active duty points representing annual training attendance, and change his years qualifying for retirement as 1 to the two retirement years subsequent to his original discharge date of 11 February 1988.

2.  Based on the additional points added to the applicant’s RYE in 1989 and 1990 it would be appropriate to authorize the resulting pay and allowances authorized at the time and to pay him the corresponding monies.

3.  The applicant should be placed in the Retired Reserve effective 8 March 1990 and entitled to Retired Pay effective the date of these Board Proceedings.

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

BOARD VOTE:  

__SK___  __CG___  ___KK___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___ Stanley Kelley ____
		        CHAIRPERSON

INDEX

CASE ID	AR1999030623	
SUFFIX		
RECON		
DATE BOARDED	20000426	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	136.03	
3.		
4.		
5.		
6.