MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  12 October 2000
	DOCKET NUMBER:  AR1999031546

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. John E. Denning		Member	
	Ms. Carol J. Suiter		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS: That his records be corrected to show that he was separated due to being medically unfit; that he received early retirement under the Temporary Retirement Authority (TERA); that he be issued a notification of eligibility for retired pay at age 60 with 15 years of service; and, that he be transferred to the retired reserve effective 10 September 1994. 

APPLICANT STATES: That, at the expiration of his term of service (ETS), he knew he was no longer medically fit to perform his military duties. Rather than waste the time of a medical review board, he elected to end his service at his ETS.  He contends that, if he had been medically boarded, he would have been granted a disability retirement.  He provides extensive medical records in support of his claim.

EVIDENCE OF RECORD: The applicant's military records show:

During the period 22 February to 18 March 1973, the applicant served in the Army Reserve (USAR) Delayed Enlistment Program.

On 19 March 1973, he enlisted in the Regular Army.  He completed his required training and was awarded military occupational specialty 95B (Military Policeman).  He was honorably separated on 22 December 1974 for the purpose of reenlisting.  His separation document indicates he had 4 years, 8 months and 25 days of creditable service.

On 23 December 1974, he reenlisted and served until he was honorably separated from active duty on 13 December 1977.

During the period 14 December 1977 to 21 February 1979, he was a member of the USAR Control Group (Reinforcement).

During the period 22 February 1979 to 14 June 1981, he had no military affiliation.

During the period 15 June 1981 to 25 July 1990, he served in an Illinois Army National Guard (ILARNG) unit, attaining 10 good years toward retirement.

On 10 September 1989, the applicant entered into the Weight Control Program and accordingly, his records were flagged to prevent him from receiving any favorable personnel actions.  On 6 February 1990, he was found to be within the maximum allowable body fat limits by .13%.  His body fat was 23.87% and the maximum was 24%.  Accordingly, the flag was removed.

During the period 26 July 1990 to 30 June 1993, he requested and voluntarily served in the inactive ARNG (ING), without any good years toward retirement.

In July 1992, the applicant underwent a C6-C7 anterior cervical diskectomy infusion, in his civilian status.  

On 9 November 1992, the applicant made application for non-occupational disability benefits through the State Employees’ Retirement System of Illinois for a herniated disc at the C6-C7 on the left.

On 1 May 1993, the applicant was found to be in non-compliance with the provisions of Army Regulation 600-9 as his body fat percentage exceeded the maximum by 2.06%.  His maximum was shown to be 26%, while his was 28.05%.

On 1 May 1993, a physical examination found the applicant qualified for retention in the ARNG.

On 16 May 1993, the applicant was issued a physical profile, which precluded him from performing duties requiring handling of heavy materials including weapons (except individual), no overhead work, and no pushups. 

On 21 June 1993, at the applicant’s request, he was transferred from the ING to an active unit effective 1 July 1993 with an expiration of his term of service of    10 September 1993.

During the period 1 July 1993 to 10 September 1994, he served in an ILARNG unit, attaining 1 good year toward retirement.

On 7 September 1993, the applicant extended his enlistment of 15 June 1975 for a period of 1 year, until 10 September 1994.

On 23 September 1993, his physical profile was expanded to read “No crawling, stooping, running, jumping, or marching for periods greater than ten (10) minutes.  No handling of materials weighing more than ten (10) pounds.  No overhead work.  No mandatory strenuous physical activity.  Physical training at own pace.  No APFT.”

In March 1994, he had further civilian surgery for arthritis at the prior surgery site (C6-C7) in his civilian status.

On 7 September 1994, a DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status) was completed.  This Line of Duty Investigation was initiated on 28 August 1994 to determine the status for an injury sustained during the period 24 July to 7 August 1993 (annual training (AT) for the previous year).  The findings, which were approved by the Adjutant General, were (1) in line of duty for a muscle strain only and (2) not in line of duty for EPTS (existed prior to service) cervical.
He was honorably discharged from the ARNG and Reserve of the Army effective 10 September 1994.  He was separated in pay grade E-7 with 15 years of qualifying service for retired pay.  

He did not elect transfer to the Retired Reserve.

On 13 April 2000, the Army Review Boards Agency Medical Advisor opined that the applicant should have undergone a Medical Evaluation Board (MEBD) to determine whether or not he met retention standards.  On 1 June 2000, the applicant concurred with the opinion.

The National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a(c).  The modification allows Reserve Component (RC) soldiers who are involuntarily separated between 5 October 1994 and 30 September 1999 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward RC retirement.  The individual must also meet the requirement of having performed the last 6 years of qualifying service in the RC as outlined in Title 10, United States Code, section 1331(a) and the new subsection (f).  This program applies to disabled RC soldiers.  It does not apply to RC soldiers voluntarily separated, e.g., based on ETS.

On 18 July 2000, the US Army Physical Disability Agency (USAPDA) opined that, in August 1993, the applicant had a “mild muscle strain” in his shoulder/arm area while performing physical training during AT.  This “injury” was later found to be in line of duty, but any other resulting impairments related to the shoulder/arm area were “not in line of duty – not due to own misconduct, EPTS cervical.”  Non-duty related physical impairments might render a soldier unable to perform their military duties; however, it does not include a referral to a MEBD or to the USAPDA for a Physical Evaluation Board (PEB).  The applicant was not eligible to be considered by the USAPDA at that time.  On 14 September 2000, the applicant rebutted the USAPDA opinion.

The applicant’s rebuttal is attached and need not be reiterated here.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  Notwithstanding the opinion of the ARBA Medical Advisor, the USAPDA, which conducts physical disability boards, has opined that the applicant’s injuries are not the proximate result of performing military duties and that this is no reason to refer him to a medical board.

2.  Separation under Army Regulation 135-178, based on being medially unfit for retention, when a non duty-related physical impairment is involved, would not include a referral to a MEBD or to the USAPDA for a PEB.

3.  The Board notes that whatever the command was “considering”, a separation based on his medical unfitness for retention did not materialize by the time of the expiration of his term of service.

4.  The applicant elected to terminate his ARNG service voluntarily, upon the expiration of his term of service, and he did not elect transfer to the Retired Reserve.

5.  A Reserve soldier did not have the option of requesting referral to a PEB until 1997.

6.  Based on the preceding discussion, this applicant is not entitled to be separated due to being medically unfit; issued a notification of eligibility for retired pay at age 60 with15 years of service; to early retirement under TERA; or that he be transferred to the retired reserve.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________ GRANT

________  ________  ________ GRANT FORMAL HEARING

__jm___  __jd____  ___cs_____ DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999031546	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001012	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.108	PD Retirement	
2.		
3.		
4.		
5.		
6.