MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            25 July 2000                  
	DOCKET NUMBER:   AR1999031734

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine 		Chairperson	
	Mr. Stanley Kelley 		Member	
	Mr. John H. Kern 		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:  In effect, that Orders 278-7, issued by US Army 
63rd Regional Support Command, Los Alamitos, California, dated 4 October 1996, be corrected to show that she was involuntarily transferred from the United States Army Reserve (USAR) to the Retired Reserve vice voluntarily transferred as currently shown on the orders.

APPLICANT STATES:  She was wrongfully transferred from the USAR to the Retired Reserve without the required physical examination or a Medical Evaluation Board (MEB); she was also allowed to extend in the USAR for 
12 months without the required annual physical examination.  Additionally, she lost her civilian job as a result of being transferred into the Retired Reserve.  She submits medical documents from June 1991 through March 1994, a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 10 September 1995, Orders 278-7, dated 4 October 1996 and her Twenty Year Letter.

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

That she served honorably in the Regular Army from 1 December 
1971-21 November 1974 and from 19 February 1975-13 February 1978.  She enlisted in the USAR on 8 January 1980.  She served on active duty from 
9 December 1990-19 June 1991.  On 10 September 1995, she was granted a 
12 month extension.  Her expiration term of service changed from 4 November 1995 to 3 November 1996.  

On 15 May 1996, she received a letter of notification that she was eligible for retired pay at age 60 (Twenty Year Letter) from the Department of the Army, US Army Reserve Personnel Center, St. Louis, Missouri.

Orders 278-7, dated 4 October 1996 from the US Army Regional Support Command transferred her to the Retired Reserve effective 4 October 1996.  These orders show that she voluntarily requested this transfer to the Retired Reserve. 

The medical documents that the applicant submitted show that on 12 June 1991, she had a physical examination for demobilization purposes.  At that time she stated that there had been no change in her physical/mental status since mobilization.  

On 13 March 1994, a Standard Form 513 (Consultation Sheet) shows that the applicant received a P3 Medical Fitness Profile due to abnormal adhesions and degenerative osteoarthritis.  Her physical activity restrictions included; no running, no jumping, no sit-ups, and no push-ups.  The consultation also stated that she was being referred to a MEB.

Medical records are limited to those that were submitted by the applicant.  These medical documents do not show whether she received a permanent profile or whether her condition improved.  However she continued to honorably serve for more than two and a half years after she received the profile on 13 March 1994.

Army Regulation 140-10, paragraph 6, provides that eligible soldiers must voluntarily request transfer to the Retired Reserve.  The voluntary request can be made only after the soldier meets the specified requirements.

Army Regulation 635-40, paragraph 3-2b, as amended, provides that when a member is being separated by reason other than physical disability, his or her 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.

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

1.  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

2.  In accordance with applicable regulations, the applicant would have been required to voluntarily request transfer to the Retired Reserve, and her orders show that she voluntarily requested that transfer.  There is no regulatory basis for an involuntary transfer to the Retired Reserve.

3.  There is no evidence available that shows that she had a medical disqualification which would have warranted a referral to an MEB.

4.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of her transfer to the Retired Reserve.  She has submitted no probative medical evidence to the contrary.  The fact that she continued to perform her duties after she extended her service obligation in the USAR created a presumption of physical fitness.  

5.  The Board has taken into consideration the applicant’s contentions that she was allowed to extend and later transferred from the USAR to the Retired Reserve without a physical examination.  This is an issue that should have been resolved at that time.

6.  The Board empathizes with the applicant due to the fact that she lost her job.  However, the Board again notes that any transfer to the Retired Reserve had to be done voluntarily.  Thus, if dual status was a requirement for her to continue in her civilian position, she lost her job due to her own voluntary actions to transfer to the Retired Reserve.  This is not a matter within the purview of this Board.  

7.  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

__tsk____  __sk_____  __jhk___  DENY APPLICATION

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

INDEX

CASE ID	AR1999031734	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000725	
TYPE OF DISCHARGE	Transferred to the Retired Reserve	
DATE OF DISCHARGE	19961004	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.0000	
2.		
3.		
4.		
5.		
6.