PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           23 OCTOBER 2001                  
	DOCKET NUMBER:   AR2001058495

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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.  In effect, the applicant requests that her military records be corrected to show that she was retired under the provisions of Public Law 103-337, section 517   (15-year retirement law), now codified under section 12731a of Title 10, U.S.C.,  so as to be eligible for Reserve retired pay at age 60 

3.  The applicant states, in effect, that she should have been retired for medical reasons instead of being transferred to the Army Reserve Control Group (Reinforcement).  She states that she was wrongly advised.  Her unit was aware of her medical condition.

4.  The applicant’s military records show that she was appointed a second lieutenant in the Army Reserve on 12 September 1977.  Although her complete military records are not available, it appears that she has had continuous service in the Army Reserve up until now.  A 10 December 1993 chronological statement of retirement points shows that she has 16 years of qualifying service for retired pay at age 60 through her retirement year ending (RYE) date of                          11 September 1993.  She was voluntarily transferred to the Army Reserve Control Group (Reinforcement) from her Reserve unit in New York on                 27 April 1996, and information from her personnel manager at the Army Reserve Personnel Command in St. Louis on 13 September 2001 revealed that she was still assigned to that Control Group. 

5.  A 24 August 1995 doctor’s statement indicates that the applicant had undergone neurosurgery on 8 June and 25 June 1995 for an intramedullary (within the spinal cord) cavernous angioma (tumor) and CSF leak.  That doctor stated that due to the serious nature of her surgeries her post-operative course was extremely conservative and the restrictions on her activities were extensive. On 18 October 1995 that same doctor stated that the applicant was doing satisfactorily, that she had severe pain, but could walk without a cane, although she still had a para-paresis with a partial Brown-Sequard syndrome (a flaccid paralysis seen in disorders of the urinary tract) and had an area of numbness in the distribution of C7-8 on the right, in the right upper extremity.

6.  On 6 March 1996 the doctor stated that the applicant continued to improve, but did have hyperalgesia (excessive sensitiveness or sensibility to pain) in her lower extremities, making ambulation and the wearing of certain garments difficult or impossible.  Hyper-reflexia (exaggeration of reflexes) persisted more on the left than the right.  She had hypalgesia (diminished sensitiveness to pain) to anesthesia (loss of feeling or sensation) in the C6-7-8 dermatome (the area of skin supplied with afferent nerve fibers by a single posterior spinal root) distribution on the right and areas of limited sensation on the left that were not quite so dermatomal in their distribution and quite extensive, but she did note that she was improving.  She could not carry more that five pounds, and would have to continue her therapy.

7.  On 5 June 1996 the doctor stated that the applicant was doing well with gradual improvement, but had to continue her physiotherapy, and at that point, remained totally disabled.  She had fixed neurologic deficits that worsened with tiredness and stress, and made her permanently disabled at that time.

8.  On 5 March 1997 the doctor stated that the applicant was status post resection of an intramedullary spinal code AVM at the cervical thoracic junction, and the lesion caused progressive quadriparesis to almost quadriplegia with marked sensory changes and a devastating result in her activities.  She underwent successful resection of the lesion with marked improvement, but still was left with quadriparesis, proprioceptive (receiving stimuli within the tissues of the body, as with muscles and tendons) disorders and gait disorders that made her inappropriate for military activity and employment. 

9.  On 29 April 1997 the Army Reserve Personnel Center at St. Louis informed the applicant that her records revealed that when she was found medically disqualified for retention in the Selected Reserve, she had between 15-19 years of qualifying service for retirement purposes, and therefore could apply for the early qualification for retirement benefits.  She was requested to sign and date an enclosed DA Form 4187 packet and return it to that agency.

10.  In a 10 March 1998 letter to the Army Reserve Personnel Center the applicant commented on that agency’s refusal of her application for retirement, noting that the reason for the rejection was because the orders stated that she voluntarily transferred [to the Control Group].  She stated that she was advised by her commander to request transfer.  She stated that she had intended to return to duty as soon as possible, but had complications and had to relearn to walk.  She stated that she had enclosed letters to her unit concerning her condition. 

11.  On 10 March 1998 the applicant applied to this Board for relief.  She was informed on 29 September 1999, that her medical records which she stated had already been submitted, were not part of her application nor was there any evidence that she had been determined to be medically unfit for continued military service.  Her application was returned without action.

12.  In a 8 May 2001 letter to this Board a doctor from the Bay Neurological Institute in Panama City, Florida, stated that the applicant was post major cervical spine surgery requiring laminectomy from C6 to T1 with microdissection and total resection of the intramedullary spinal cord arteriovenous (both arterial and venous) malformation.  He stated that the applicant had suffered from permanent left sided weakness and spasticity (afflicted with or involving spastic paralysis) as well as chronic pain syndrome with gait disturbance.  She was permanently and totally disabled.

13.  In a 17 May 2001 statement the Command Surgeon of the 77th Regional Support Command, the applicant’s former major command, stated that the applicant did not meet the standards for retention in the Army.

14.  The National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a.  The modification allows Reserve component soldiers who are involuntarily separated between 5 October 1994 and 30 September 1999 (since changed to                     1 October 2001) 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 Reserve component retirement.

CONCLUSIONS:

1.  The applicant’s complete medical records are unavailable.  Nevertheless, the 29 April 1997 letter from the Army Reserve Personnel Center clearly indicates that she was medically unqualified for retention while in the Selected Reserve, that is prior to her transfer to the Control Group in April 1996.  Statements from her doctors in 1995, 1996, and 1997, clearly delineate her medical condition, and recent statements show that she is medically unfit for retention in the Army.    

2.  Consequently, and in spite of the lack of her medical records, the available information leads to the conclusion that the applicant was medically unfit for retention prior to her transfer to the Control Group (Reinforcement) in 1996.  The applicant had more than 16 years of qualified service for retired pay at age 60 in 1993 and would not likely have requested transfer to the Control Group, with no opportunity for retired pay, of her own volition.  The Board thus accepts her statement that she requested a voluntary transfer to the Control Group only upon the advice of unit personnel. 

3.  The applicant would most assuredly have requested transfer to the Retired Reserve in lieu of transfer to the Control Group had she been aware of the provisions of Public Law 103-337.  Accordingly, her transfer to the Control Group on 27 April 1996 depriving her of Reserve retirement pay at age 60 and other benefits is unjust.

4.  In all fairness to the applicant, the 77th Regional Support Command orders 118-28 of 27 April 1996, that transferred her to the Army Reserve Control Group (Reinforcement), should be null and void and of no force or effect, and should be revoked.   

5.  Thus, the applicant’s record should be corrected to show that she voluntarily transferred to the Retired Reserve with entitlement to Reserve retired pay at age 60 under the provisions of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337).  
6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

     a.  by revoking the 77th Regional Support Command orders 118-28, dated     27 April 1996, that transferred the applicant to the Army Reserve Control Group (Reinforcement) on 27 April 1996.  That order is null and void and of no force or effect; and, 

     b.  by transferring the applicant to the Retired Reserve effective 27 April 1996 with entitlement to Reserve retired pay at age 60 under the provisions of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337).                 
BOARD VOTE:  

__SLP __  __ALR __  ___TEO _  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Shirley L. Powell   _
		        CHAIRPERSON

INDEX

CASE ID	AR2001058495	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011023	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.	177	
3.		
4.		
5.		
6.