IN THE CASE OF: BOARD DATE: 25 August 2020 DOCKET NUMBER: AR20170014795 APPLICANT REQUESTS: * To be issued a Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter) for her U.S. Army Reserve (USAR) service * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Congressional correspondence * USAR Orders reassigning applicant to the Retired Reserve * Department of Veterans Affairs (VA) letter * Letter from applicant's medical provider * Extract from applicant's VA medical records (35 pages) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), Section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, she received orders in 2004 that showed she was separated due to medical disqualification. a. Prior to this, the applicant was told a medical board would be convening in or around January 2003; the board was going to evaluate her medical conditions, and the applicant would be allowed to attend in order to present her case for her continued USAR service; she was additionally told the board results would preclude the need for her to remain deployable. Despite the foregoing, her USAR unit refused to issue her travel orders so that she could attend the board, and she never received a copy of the board's proceedings; further, there are no records pertaining to her medical board in her official military personnel file. b. The applicant goes on to assert that, although she had been an instructor for the duration of her USAR service, they told her she had not been assigned to one of the unit's instructor slots; she nonetheless maintains her duty performance as an instructor was exemplary. At another point, they said she was discharged because she had twice been non-selected for promotion; she states she does not recall ever submitting her promotion packet since her intent all along was to retire once she had completed 20 years of service. c. Upon the conclusion of the medical board, the applicant's leadership told her not to attend any more drills; as a result, she was unable to accumulate the additional retirement points needed to accrue 20 good years. They subsequently told the applicant her separation was a "medical retirement" and, because she had accumulated over 15 years of qualifying service, she would receive a lesser retirement; the U.S. Army Human Resources Command (HRC) was supposed to contact her when she reached retirement age. d. When she turned 59 years of age, she applied to HRC for a Non-Regular retirement; it was at this point she discovered her records were incomplete. The applicant noted her USAR unit had gained a reputation for being lax when it came to completing administrative requirements; she asserted there were numerous instances when the unit failed to issue orders for her Soldiers to attend training and, as a result, some of her Soldiers lost their civilian jobs due to the lack of official documentation to cover their absences. When the applicant expressed concern about the unit's irregularities, they labeled her a troublemaker; as such, she was not surprised when the record of the medical board's proceedings could not be located. 3. The applicant provides a copy of her separation orders, letters from the VA, as well as letters from her U.S. Senator and medical provider; in addition, she submits 35 pages extracted from her VA medical records. 4. The applicant's service records show: a. On 5 February 1983, the applicant executed her oath of office as a USAR commissioned officer. On 23 July 1986, she entered active duty to complete a 3-year tour of obligated service; she remained on active duty after fulfilling her obligated service. On 18 August 1992, per her request, she was honorably released from active duty (REFRAD) and transferred to the USAR Control Group (Reinforcement). b. Effective 26 July 1993, the applicant was transferred from the USAR Control Group (Reinforcement) to a Troop Program Unit (TPU); on or about 19 July 1994, she was reassigned to a USAR school, where she performed duties as a Clinical Instructor. The applicant was subsequently reassigned two more times; she continued her service as an instructor at both of these TPUs. Effective 30 April 1995, the applicant was promoted to major. c. The applicant's separation packet is not available for review; however, she provides a copy of her separation order, which shows, effective 1 March 2004, she was transferred to the Retired Reserve due to medical disqualification; the order reflected the disqualification was not the result of the applicant's misconduct. The separation order's authority was Army Regulation (AR) 140-10 (Assignments, Attachments, Details, and Transfers.) The orders are void of pay entitlement information. d. The applicant's service record confirms she completed 19 years of qualifying years for a Non-Regular retirement; there is no indication she was issued a 15-Year Letter. e. On 21 May 2020, in order to complete the record and obtain a copy of the separation packet and/or a copy of the medical evaluation board proceedings, a supervisor in the ABCMR spoke with the U.S. Army Reserve Command, Chief, Officer Management Branch, who indicated: (1) The system of record is void of these documents, as well as copy of her separation orders; however, in looking at iPERMS he could also see her record was newly created with a multitude of documents that would not normally be iPERM'd into a service members records. (2) There was clearly administrative irregularity in the proper retention of her records, as well as, the publication or her separation orders, specifically the orders were void of the required statement that indicates whether or not a member is authorized pay. 5. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis. 6. Due to the timeline of this application and in order to clarify the applicant's request and complete the record during the COVID-19 pandemic, a supervisor in the ABCMR contacted both the applicant and the Chief, Officer Branch, U.S. Army Reserve Command and requested a copy of the applicant's MEB. The Chief, Officer Branch, U.S. Army Reserve Command concurred that the applicant’s retirement orders were not published properly and advised her iPERMS record was showing that it was recently created and had a significant amount of documents, pre-dated to 1994, which include medical documents that did not reflect medical conditions and/or physical disabilities warranting an MEB, and considering the date associated to her Retirement orders it is unknown how her MEB proceedings were non-existent or why her Retirement orders were not showing in her iPERMS. 7. The applicant requests the Board to require that HRC issue her a 15-Year Letter; she states she was not given the due process when her command initiated and processed her before an MEB that resulted in her being wrongfully separated for medical reasons vice being able to complete her last year of service and be issued her 20-year letter. She did not put herself before the board because of her 19 years of qualifying service and her intent to transfer to the retired reserve upon receipt of her 20 year letter. a. In regards to her stating her command first attempted to erroneously separate her as a two-time non-select for promotion. Her record provides she was notified in 2001 and a second time in 2003 for non-selection for promotion. Based on the available evidence, she had already accumulated 19-years of qualifying service credit. Neither her available records and/or the U.S. Army Reserve command can provide evidence that shows the surrounding circumstances or why any additional administrative action took place upon the second notification in 2003. b. The applicant states that after she contested her 2x non-select was an erroneous board action, her command continued to ostracize her and initiated the involuntary MEB. Her rights were violated through the process she was given only a copy of the separation orders. She was never counseled formally/informally, given the opportunity to appear and/or appeal. Which she would have done, because at the time she was processed she had already incurred 19-years of qualifying service credit towards a 20- year retirement; she felt that she may not be deployable, but she was still a mobilization asset. (1) Based on the available evidence, review of her record, and U.S. Army Reserve Command information there appears to be substantive error and irregularities that occurred in the overall administrative management of the applicants Army Military Human Resources Record (AMHRR), as well as, in the processing of MEB and publication of orders. (1) In regards to the applicant indicating she was improperly processed through an MEB and is unaware of what medical conditions and/or physical disability her command initiated the MEB for and/or the MEB results. a) At the time of review of her AMHRR, the system of record shows it was newly created, approximately 16 years post service. It contained a plethora of personnel and medical documents over her entire career and fail to show a physical profile(s) and/or medical condition(s) and/or physical defect(s) that are listed in AR 40- 501, Chapter 3 and resulted in an MEB. b) U.S. Army Reserve Command are unable to provide the specific circumstances as to why there is no evidence of an MEB occurring and/or why her medical separation orders were not placed in her AMHRR. Additionally, her orders were published with error and missing her entitlement, which is pertinent information that is negatively impacting her benefits and pay entitlements. (2) The applicant's command introduced administrative irregularity in the proper retention of her records which has resulted in our inability to provide specific information regarding the medical condition and/or physical disability that resulted in the MEB. a) The PDES consists of an MEB, Informal Physical Evaluation Board (IPEB), and a Formal Physical Evaluation Board (FPEB). Evaluated member's responsibilities and rights, to appear before the boards and appeal results throughout the process. Due to the improper retention of any medical documents regarding her medical retirement, we are unable to determine if the applicant's rights were jeopardized in the processing of her medical evaluation proceedings and the overall processes in place to determine whether or not she was medically unfit for retention, if she elected to appear before the medical board, if she received her MEB results properly, or if the medical condition and/or physical disability incurred in the Line of Duty. b) Neither her record and or the U.S. Army Reserve Command provide evidence as to when the MEB was initiated or the reason(s) surrounding the MEB action. The PDES process, is clear in describing the Commander, counselor, and legal representative requirements to ensure the evaluated member is counseled properly, understands the results, their responsibilities, and the options available to them during each phase of the process. 7. Regarding the 15-year letter. During the applicant's era of service, USAR Soldiers who did not meet medical fitness standards were required to be either transferred to the Retired Reserve (if eligible) or discharged. According to the version of AR 140-10 in effect at the time, USAR Soldiers who had been medically disqualified for continued military service could, at their request, be transferred to the Retired Reserve; the transfer was authorized regardless of the total years of service completed, but the Soldier's disqualification could not have resulted from the Soldier's own misconduct. AR 135-180 in effect when the applicant separated made no mention of a 15-year Letter. The 15-year letter was not included until 2015. 8. Regarding 20-year Letter. Transfer to the Retired Reserve, however, did not mean the USAR Soldier automatically became eligible for Non-Regular retired pay; AR 135- 180 (Qualifying Service for Retired Pay Non-Regular Service) addressed eligibility requirements for Non-Regular retired pay, and stated USAR Soldier had to have completed at least 20 qualifying years of service. Soldiers meeting this criteria were issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 9. The applicant contends those actions were taking place as a result of her reporting inefficiencies and being labeled as a whistle blower. a. Based on the available evidence, information provided by the U.S. Army Reserve Command, the improper retention of her records, and her orders being improperly and retroactively, it is reasonable to believe the applicant's rights were potentially jeopardized during the PDES process, resulting in her being improperly separated. b. Additionally, based on her successfully executing duties at the time as an instructor [not at risk of deployment] and her Chronological Record of Retirement Points showing she had consistently accumulated 19-years of qualifying service by 4 February 2003 [exceeding points requirements for several years] and short by 10 points of meeting her last qualifying year, it is reasonable to believe she would have exercised her appeal rights of the MEB in order to request retention at the time the PDES process occurred, which would have allowed her to request retention to complete her last year of qualify service to receive her 20-year letter. c. The applicant provides a copy of orders that show she was medically separated through no misconduct of her own. Her Chronological Retirement Points Statement shows "RET." According to AR 140-10, chapter 6 assignment to the Retired Reserve is authorized, upon request, for reasons that include "medically disqualified, not as a result of own misconduct, for retention in an active status or entry on AD, regardless of the total years of service completed. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, and evidence in the record and found that partial relief was warranted. 2. The Board agreed that the applicant consistently served qualifying years of service and administrative irregularities were found in her service record. The applicant was not properly medically Boarded and was improperly Boarded for promotion and non- selected with 19 years of combined service on active duty and in the USAR. The applicant’s retirement point summary indicates that she consistently served for more than the required 50 points per year. The Board found that the applicant is entitled to a 20-year letter and non-regular retirement from the USAR. 3. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by a. Revocation of Orders, Department of the Army Headquarters, 99th Regional Readiness Command, Orders 04-065099923; b. showing approval of retention in the Ready Reserve to complete her last qualifying year of service for 20-year letter eligibility; c. Transferring 11 active duty points from RYE 19930204 to RYE 20040204 to give her a total of 50 qualifying points in RYE 20040204 d. her Issuance of a 20-year letter effective 4 February 2004; e. Approval of transfer to the Retired Reserve effective 5 February 2004; and f. To show that she applied for retired pay in a timely manner and her request was approved. 2. The Board recommends no personal appearance. X CHAIRPERSON 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. ADMINISTRATIVE NOTE(S): Not applicable. REFERENCES: 1. Title 10, USC. a. Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. b. Section 12731b (Special Rule for Members with Physical Disabilities Not Incurred In the Line of Duty), enacted 5 October 1999, states a member of the Selected Reserve who is no longer qualified for military service as a result of a physical disability may be treated as having met service requirements for retirement if they have completed at least 15, but less than 20 years of qualifying service. The disability must not have been the result of the member's intentional misconduct, willful neglect, or willful failure to comply with the standards and qualifications for retention. In addition, the disability must not have been incurred during a period of unauthorized absence. 2. AR 140-10, in effect at the time, prescribed policies and procedures for the assigning, attaching, removing, and transferring USAR Soldiers. It addressed transfer to the Retired Reserve in chapter 6 (Transfer to and from the Retired Reserve). a. Assignment to the Retired Reserve is authorized after a request made by the eligible Soldier based on one of the following: * entitled to received retired pay from the Armed Forces because of prior military service * completed a total of 20 years of active or inactive service in the Armed Forces * medically disqualified for active duty resulting from a service-connected disability * "appointment" based on the condition the Soldier immediately apply for transfer to the Retired Reserve * reached the age of 37, and completed a minimum of 8 years of qualifying Federal service under the provisions of Title 10, U.S. Code 1332(a)(2) (renumbered to section 12732 by Public Law 103-337, 5 October 1994) completed 10 or more years of active Federal commissioned service * medically disqualified not as a result of own misconduct, for retention in an active status, or entry on active duty, regardless of the total years of service completed b. Orders transferring Soldiers to the Retired Reserve will cite paragraph 6-2, and state the reason for transfer. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, prescribed policies and procedures with regard to medical fitness. Chapter 9 (Army Reserve Medical Examination) stated members of the USAR were responsible for maintaining their medical fitness, and were required to undergo periodic medical examinations. USAR members who did not meet the fitness standards were either transferred to the Retired Reserve (if eligible) or discharged. 4. The Physical Disability Evaluation System (PDES) existed to ensure equitable application of the provisions of Title 10, United States Code, Chapter 61, which relates to the separation or retirement of military personnel by reason of physical disability. The laws in place provide benefits for eligible members whose military service is terminated due to a service connected disability, and they prevent the arbitrary separation from the service of those members who incur a disabling injury or disease, yet remain fit for duty. a. An MEB is the first step in the PDES and is convened to conduct a thorough and expeditious evaluation of a member whose fitness for duty is questionable. Based on the physical condition found the MEB will recommend of the following dispositions, and complete the Board Report requirements. * Medically fit for duty, or medically fit for duty (aviation or diving) * Not for duty because of possible physical impairment [referral to IPEB] * Not fit for duty for reasons other than physical impairment, * Not fit for duty because of physical impairment that existed prior to entry but was not aggravated by service b. The evaluated member will be provided a copy of the MEB report, significant findings, opinions, and recommended disposition shall be brought to the members attention, the PDES will be explained and the member will be counseled by a qualified (knowledgeable) person with a working knowledge of the system and afforded the opportunity to submit a statement in rebuttal to any portion of the board's report. If a rebuttal is submitted, the board will, if practicable, review the rebuttal and make changes to the report or prepare additional comments as deemed appropriate. A copy of changes will be provided to the member. If the member does not act within 21 days of receipt of the board's findings and recommended disposition, the action will proceed without further delay. If a member believes a PEB will find them unfit based on the MEB findings, they may submit a letter requesting retention. c. Action Required by Commanding Officer. The member's commanding officer, within 30 days, must ensure they are counseled about the content of the board report, and a physician has provided the evaluated member a thorough explanation of their medical conditions and have the member sign indicating they received and understand the results. The commander will endorse the report of MEB with full recommendation based on knowledge and observation of the member's motivation and ability to perform, ensuring that all factors affecting the health of a the evaluated member is properly documented and included in the MEB, or the endorsement so the IPEB may make a proper disposition of the case. d. Based on the MEB Finding the evaluated member may undergo an Informal or formal evaluation board (IPEB/FPEB). An evaluated member will be appointed counsel through IPEB, who will, within 5 days of the receipt of the copy of the IPEB finding and recommendation advise the member of the disability process and the their rights in light of the IPEB findings and recommendations. The evaluated member has the responsibility to: * Request reconsideration and submit information not previously submitted or accept the findings * Accept the findings * Conditionally accept, pending approval of a retention request * Reject and demand a formal hearing a the FPEB * Waive continued disability processing and request administrative separation or retirement processing. 5. AR 135-180 (Qualifying Service for Retired Pay Non-Regular Service), dated July 1987 and in effect at the time, implemented the statutory authority for granting retired pay to qualifying Reserve Component Soldiers. It stated, to be eligible for Non-Regular retired pay, the Soldier had to have completed a minimum of 20 qualifying years of service. 6. In 2015, AR 135-180 was revised and was renamed (Retirement for Non-Regular Service). It added the provisions outlined in Title 10, USC, Section 12731b, and stated, to be eligible for retired pay at or after age 60, the Soldier needed to have completed at least 15, but not more than 20 qualifying years when the Soldier was determined to be unfit for continued USAR service. These Soldiers were to be issued a 15-Year Letter reflecting their eligibility for Non-Regular retired pay. 7. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR on a case-by-case basis. //NOTHING FOLLOWS//