PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            3 August 2000                  
	DOCKET NUMBER:   AR1999030765

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Calvin M. Fowler		Member	
	Mr. Edwin S. Castle		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 medical conditions (flat feet and back) be shown on his DD Form 214 (Report of Separation from Active Duty).  He also requests a medical discharge.

3.  The applicant states, in effect, that his DD Form 214 does not reflect that his medical conditions (flat feet and back) are service connected or that he requested a medical discharge due to these medical conditions.  In support of his application, he submits an undated copy of a Standard Form 180 (Request Pertaining to Military Records); copies of medical records; a copy of Notification of Discharge due to Medical Disqualification for Retention dated 1 March 1996; a copy of an undated Election of Options - Medical Disqualification for Retention; a medical statement dated 30 July 1993; a medical statement dated 16 August 1993; a medical statement dated 14 February 1995; medical documentation from John F. Kennedy Memorial Hospital dated “12-21”; a copy of Request for Physician’s Certification dated 6 March 1995; and a copy of Physician’s Certification dated 6 March 1995.

4.  The applicant’s military records show that he enlisted in the USAR on 
22 February 1975 for a period of 3 years.  He was ordered to active duty for training on 19 August 1975 and was honorably released from active duty on 
5 December 1975 and transferred to the USAR. 

5.  On 3 December 1995, as a result of the applicant’s degenerative disk disease, medical authorities determined that the applicant did not meet retention standards of medical fitness for duty in accordance with Army Regulation 40-501; and that he should be processed for discharge.   On 13 December 1995, the 77th Army Reserve Command Surgeon determined that the applicant was not qualified for retention based on a rating of “P4” [permanent 4] under P [physical capacity or stamina]. 

6.  On 1 March 1996, the applicant was notified of his pending discharge due to medical disqualification for retention in the USAR and the options available prior to the actual discharge action.

7.  The applicant elected, in accordance with Army Regulation 135-178, paragraph 12-1, to be discharged/separated due to a medical condition which rendered him medically disqualified for retention.

8.  Accordingly, the applicant was honorably discharged from the USAR effective 
13 May 1996. 

9.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Chapter 12 of the regulation, establishes policy and prescribes procedures for separating members for other reasons.  Paragraph 12-1 (Medically unfit for retention), provides that separation will be accomplished by separation authorities when it has been determined that an enlisted soldier is no longer qualified for retention by reason of medical unfitness (Army Regulation 40-501 or National Guard Regulation 40-3/National Guard Regulation 40-501) unless the soldier requests and is granted a waiver under Army Regulation 40-501 or National Guard Regulation 40-501, as applicable; or eligible for transfer to the Retired Reserve (Army Regulation 140-10).  Soldiers separated under this chapter will be awarded a character of service of honorable or under honorable conditions, unless an uncharacterized description of service is required.

10.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, provides the standards for medical fitness for retention and separation, including retirement.  

11.  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 designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  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.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  

12.  Title 10, U.S. Code, Section 12731a is the temporary special retirement qualification authority.  This provision of law permits that, upon request, a member of the Selected Reserve may be transferred to the Retired Reserve if he or she:  (1)  has completed at least 15, but less than 20, years of qualifying service and (2) no longer meets  the qualifications for membership in the Selected Reserve solely because of unfitness due to physical disability.  This provision does not apply to any member whose disability resulted from intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention or was incurred during a period of unauthorized absence.  Title 10 was amended by the 106th Congress to extend the period of eligibility for this special retirement benefit from 1 October 1991 through 30 September 2001.

CONCLUSIONS:
1.  On 13 December 1995 the 77th Army Reserve Command Surgeon determined that the applicant was not qualified for retention based on a rating of “P4” [permanent 4] under P [physical condition and stamina].

2.  Notwithstanding the applicant’s contention that he requested a medical discharge due to his medical conditions, evidence of record shows he 
elected, in accordance with Army Regulation 135-178, paragraph 12-1, to be discharged/separated due to a medical condition which rendered him medically disqualified for retention.

3.  The applicant was properly discharged from the USAR for medical disqualification for retention on 13 May 1996.

4.  However, at the time of his discharge, the applicant had completed at least 
15 years but less than 20 years of qualifying service.

5.  The Temporary Special Retirement Qualification Authority provides retirement eligibility for individuals in the applicant’s situation and is substantially more beneficial to the applicant.

6.  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 13 May 1996 and assigning him to the Retired Reserve effective the same date.

7.  The applicant requested that his medical conditions be shown on his DD Form 214.  However, there are no provisions for entering medical data on the DD Form 214.  Therefore, the applicant is not entitled to the addition of medical information on his DD Form 214 as requested. 

8.  In view of the foregoing findings and conclusions, 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 13 May 1996 discharge from the USAR of the individual concerned; and 

b.  by showing that on 13 May 1996 the individual concerned was honorably separated from the USAR and transferred to the Retired Reserve in accordance with the Temporary Special Retirement Qualification Authority and is entitled to all benefits thus conferred.

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

BOARD VOTE:  

JNS_____  CMF____  ESC___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR1999030765	
SUFFIX		
RECON		
DATE BOARDED	20000803	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19751205	
DISCHARGE AUTHORITY	AR 635-200 Para 5-17	
DISCHARGE REASON	Released from active duty training	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	100.0000	
2.	108.0000	
3.		
4.		
5.		
6.