ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20160016134 APPLICANT REQUESTS: In effect, reconsideration of his previous request transfer to retired list or given a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DA Form 4250 (Certificate of retirement), dated 13 October 1978 * Orders 135-133, dated 12 July 1979 * DA Form 977 (Retired reserve certificate), dated, 12 July 1979 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050011825 on 31 May 2006. 2. The applicant states on 13 October 1978 he was awarded a certificate of retirement signed by MG X____. X____, USAR, Commanding, 86th United States Army Reserve Command. On 12 July 1979 he was placed on the retired reserve list by orders 135-133. He is still considered a ‘gray area retiree’, and requesting to be transferred to the retired list or have his records changed to reflect a medical retirement. 3. The applicant provides: * Certificate of Retirement, dated 13 October 1978 * Reassignment orders 135-133, dated 12 July 1979 relieving him from United States Army Reserve (Ready) by reason of medically disqualified and assigning him to the retired reserve effective 12 July 1979 * Retired Reserve Certificate dated, 12 July 1979, showing he was transferred to the retired reserve 4. A review of the applicant’s service records shows the following: a. He was inducted into the Army of the Unites States on 7 May 1968. He was discharged on 12 May 1968 for immediate enlistment on 13 May 1968. b. On 4 April 1968, Standard Form (SF) 88 (Report of Medical Examination) shows the applicant was fit for military service. c. On 20 April 1971, SF 88 shows the applicant was physically and mentally fit for discharge. No mention of any abnormalities. d. On 23 April 1973, SF 88 shows the applicant is qualified for Reserve. e. He was honorably released from active duty on 12 May 1971 and transferred to U. S. Army Control Group (Reinforcement) under the provisions of Army Regulation (AR) 635-200 Enlisted Separations-Enlisted Personnel) chapter 2 (Separation of Enlisted Personnel) paragraph 2. Reason was relief from active duty. At that time, he completed 3 years of active service. He was awarded the Army Good Conduct Medal and the National Defense Service Medal. f. Medical documents, dated 9 September 1977, shows the applicant’s earliest indication of any seizure disorder when a laboratory report noted "Dilantin" [an anti-convulsion medication] and a neurological history reported a, pre-service, generalized seizure under surgical anapestic in 1958. Later he experienced twitching and jerking of the extremities while sleeping with his wife. [The report says 1952 but, based on his age, this obviously a typographical error [The correct date is probably 1972]. More symptoms occurred in 1973 and the next episode occurred in March 1976 with another in April 1977. g. On 2 January 1979, Standard Form 93 (Report of Medical History) shows the applicant underwent an exam for medical discharge. The applicant indicated having had issues with dizziness or fainting spells, head injury, and epilepsy or fits. Doctor’s notes are illegible. SF 88 shows the applicant was disqualified for retention, reenlistment, or promotion in accordance with AR 40-501 (Medical Services-Standards of Medical Fitness) paragraph 3-28e (Neurological Disorders (convulsive disorders)). h. Recommendation for separation shows the applicant’s chain of command recommended separation on 16, 17, and 23 May 1979 under the provisions of AR 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel) paragraph 3-4a (Medically unfit for retention). Applicant was having uncontrollable Epileptic Seizures. i. Orders 135-133, dated 12 July 1979, relieved him from the USAR (Ready) and assigned him to USAR Control Group (Retired Reserve) effective 12 July 1979. Reason stated was medically disqualified. 5. On 14 June 2006, the applicant was notified that the Board for Correction of Military Records on 31 May 2006 determined that insufficient evidence has been presented to indicate probable material error or injustice, and the application was denied. 6. On 21 November 2018, the Human Resources Command rendered an advisory opinion in the applicant’s case. The advisor stated: a. The Reserve Component Retirement Branch (RCR) has reviewed the applicant’s military records and determined he has 7 years of qualifying service. To be eligible for a 15 year retirement, a Soldier must be medically retired or serving in a unit that was being downsized, deactivated, or relocated at the time the Soldier attained 15 years. b. AR 135-180, Para 2-2, states that a Reserve Soldier requesting a 15 year retirement under Title 10 USC 12732 must be separating because they have been determined to be unfit for continued Selected Reserve Service. c. It is the opinion of the RCR Branch that the applicant was determined medically disqualified for retention on 12 July 1979. The supporting documents that was sent with the Advisory Opinion is not enough information to determine a medical retirement. Therefore, it is the opinion of the RCR Branch that he is ineligible for retired pay. 7. On 11 December 2018, the applicant was provided with a copy of this advisory opinion to give him an opportunity (15 days) to submit a response and/or a rebuttal. He did not respond as of 8 January 2019. 8. On 4 April 2019, the ARBA Medical Advisor rendered an advisory opinion in the applicant’s case. The advisor stated: a. The applicant met medical retention standards IAW Chapter 3, AR 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. The applicant failed to disclose a prior head injury/concussion and seizures prior to coming onto active duty service at the age of 9 and having previously been using seizure medication. There are multiple medical histories while on active duty and the reserves which do not report seizures or head injuries. While it is noted that there are reports from two Soldiers about the applicant falling from a vehicle while in Germany (summer of 1969), there are no medical records available. In addition, there are no reported seizures or ongoing issues in the following 2 years while on active duty service. He was found to meet retention standards on his exit physical as noted in his medical history and examination (4 April 1971 and 20 April 1971). According to neurology notes dated 9 September 1979, the applicant redeveloped seizures starting in 1972, after having been discharged from active duty service. b. The applicant's medical conditions were duly considered during medical separation processing. c. A review of the available documentation found no evidence of a medical disability or condition that would support a CHANGE to the character and/or reason for the discharge in this case. 9. On 19 April 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity (15 days) to submit a response and/or a rebuttal. He did not respond as of 16 May 2019. 10. By regulation, AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. a. AR 135-178, prescribes the policies, criteria, and procedures which apply to separation of enlisted members of the Army National Guard of the United States (ARN-GUS) and the United States Army Reserve (USAR). b. AR 135-180, Para 2-2, states that a Reserve Soldier requesting a 15 year retirement under Title 10 USC 12732 must be separating because they have been determined to be unfit for continued Selected Reserve Service. c. AR 635-40, establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the findings of both advisory opinions and the lack of a rebuttal from the applicant on those findings, the Board concluded that there was insufficient evidence to show an error or injustice which would warrant making a change to the applicant’s record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation (AR) 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. Once a determination of physical unfitness is made, the Physical Evaluation Board (PEB) rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities (VASRD). Department of Defense Instruction (DODI) 1332.39, and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), appendix B (Army Application of the Veterans Administration Schedule for Rating Disabilities), modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions. Ratings can range from 0 to 100 percent, rising in increments of 10 percent. Paragraph 3-28e states Convulsive disorders. (This does not include convulsive disorders caused by, and exclusively incident to the use of, alcohol.) When seizures are not adequately controlled (complete freedom from seizure of any type) by standard drugs which are relatively nontoxic and which do not require frequent clinical and laboratory re-evaluation. 2. AR 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel) prescribes the policies, criteria, and procedures which apply to separation of enlisted members of the Army National Guard of the United States (ARN-GUS) and the United States Army Reserve (USAR). Paragraph 3-4a (Medically unfit for retention) states discharge will be accomplished when it has been determined (AR 40-501) that an enlisted member is no longer qualified for retention by reason of medical unfitness (AR 140-120) unless the member requests and is— * Granted a waiver under AR 140-120 * Eligible for transfer to the Retired Reserve (AR 140-10). 3. AR 135-180, Para 2-2, states that a Reserve Soldier requesting a 15 year retirement under Title 10 USC 12732 must be separating because they have been determined to be unfit for continued Selected Reserve Service. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. ABCMR Record of Proceedings (cont) AR20160016134 5 1